/ 14 January 2025

Judicial tribunal hears of Judge Mbenenge’s sexually explicit texts to colleague

Selby Mbenenge
Eastern Cape judge president, Selby Mbenenge. (Judges Matter)

The judicial secretary who has accused the Eastern Cape judge president, Selby Mbenenge, of sexual harassment has told a Judicial Service Commission tribunal that she would have responded differently to his advances had he not been in a position of power.

In testimony on Tuesday, Andiswa Mengo, 37, said she was a single mother who feared that she could lose her job if she objected outright to a stream of inappropriate messages from Mbenenge, including insistent demands for photographs of her.

“Firstly I was respecting the fact that he is my boss. Secondly, because he is a powerful person, I was afraid. I was afraid of losing my job as I am a single mother,” Mengo said. 

“I do not know therefore what he would have thought if I had spoken to him in a rude manner.”

Evidence leader Salome Scheepers asked whether, if she had received the same messages from a colleague who was an equal in the workplace, she would have responded in the same manner.

“No, I would have not. I would have told that particular person that firstly, I am not interested in what you are saying — look to the other side there are many people out there,” Menge replied.

The tribunal began hearing her complaint on Monday, just more than a year after she laid a criminal charge against Mbenenge. 

At the outset, Scheepers, a senior state advocate, noted that the WhatsApp exchanges between Mbenenge and Mengo were always initiated by the judge, and although he would raise a neutral topic at first, his tone would invariably turn sexual.

She stressed that Mengo was deeply mindful of the power imbalance in the relationship, and therefore tried to placate the judge while rebuffing him.

The second day of the judicial conduct tribunal hearing dealt with text messages exchanged in mid-June 2021.

Mbenenge is the first judge to risk impeachment for sexual misconduct but claims the interaction between him and the secretary to a colleague was consensual.

He repeatedly tried to solicit photographs of the complainant, at one point suggesting that she “go halfway now, then leave the rest for another day”. 

Mengo said this brought to mind an earlier message where he had asked her to take her shirt off. She testified that she did not send him a photograph, but instead uploaded a new picture to her WhatsApp profile. 

She added that she felt both annoyed by the fact that Mbenenge endlessly repeated the same demands and demeaned by the nature of the texts. She said she had also noticed that if she ignored him, the messages would continue regardless.

But many of Mengo’s responses to the judge’s messages read as coy or ambiguous, and she was asked by Scheepers more than once to explain why she had responded in such a manner.

For example, Scheepers said, Mengo testified that she wanted to bring Mbenenge to state plainly why he wanted pictures of her, yet she never simply put the question to him. 

“Can you explain to us why you did not ask it outright?”

She replied that she was conversing with someone much older and more experienced than herself who would understand what she was trying to say. Later in the same exchange, she asked Mbenenge if he was prepared to pay her and told the tribunal this too was meant to deter the judge.

“When you are a girl who is not interested … to chase him away you make sure that you include the word money.”

The messages continued and on the evening of 16 June, Mbenenge sent her a message reading: “Are you quick to melt?”

She replied: “Depends.”

Asked by Scheepers to explain her response, Mengo said she was being sarcastic because she remarked that the tone of the judge president’s messages was changing.

“In changing, quoting the word melt, it was now evident that the conversation was now changing, taking the direction of disgust.”

The chairperson of the tribunal, retired Gauteng judge president Bernard Ngoepe, asked whether she meant that the turn that the conversation was taking disgusted her. Mengo replied that this was correct.

In her response to Mbenenge’s text she said she was cooking. 

Mengo told the tribunal this was both sarcastic and intended to indicate that she was actually preparing a meal and that her life did not revolve around responding to messages from her. 

The judge then sent a message saying: “If you happen to have melted, step one.”

Mengo replied: “It would mean the marinade worked before the heat.” 

Ngoepe interceded to say this message did not make sense to him, and Mengo explained that she wanted to shift the conversation to safer, neutral ground.

“I did not want to entertain his disgusting conversations.”

Ngoepe asked whether she meant that her response to Mbenenge’s message was not a double entendre but intended literally.

“So here you are talking about marinade as marinade and heat as heat?”

Mengo said this was correct. Scheepers noted that Mbenenge then sent a number of messages that he subsequently deleted, but that Mengo had responded to one of these with emojis of a face with lips zipped closed.

Explaining this, Mengo said she sent this in reply to a message from Mbenenge saying he was listening to her. Still more messages from the judge followed. He deleted several, which she said included pictures of sexual acts. In yet another message, he mentioned “position one”.

Mengo said it dawned on her seeing the message again while testifying that this was a reference to acts in the deleted messages.

“There were sexual pictures that I was supposed to have picked from,” she told the tribunal. 

She replied to Mbenenge with a message saying, “Stop riddles.” Asked why, she said she wanted to force him to be frank about his intentions.

“I will go with whatever. But there is a word I like — surprise.”

“Because I did not want to be in an argumentative position with him. And in me using the term ‘surprise’, yes I have an element of being annoyed.”

Pressed again by Scheepers as to why she responded in this manner, she said it was in the hope of ending the conversation. Scheepers noted that it did not work because more messages followed.

“I was in no position of responding to him in the manner I would have if we were of the same age because I was calculating also the fact that he is elderly,” Mengo countered.

Scheepers noted that the date of this exchange was 16 June, a public holiday, and that it continued till 23h15. Mengo agreed that it was invasive and became tearful.

“I felt like someone who does not have dignity. He never respected me. Even the time. This happened while I was not at work ”

At Scheepers’ request, Ngoepe adjourned the hearing an hour early but warned Mengo  that there were aspects of her testimony that were unsatisfactory and that the tribunal would seek clarity.

“Speaking for myself, this page that we have been dealing with about positions and the heat in the kitchen and all that sort of thing, contains some issues which are not clear to me. I pray that with passage of time, they will be honestly addressed and clarified,” he said.

“It does not matter how uncomfortable, they will have to be clarified,” Ngoepe said.

The hearing was scheduled to continue on Wednesday.

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