Eastern Cape Judge President Selby Mbenenge. (Nelius Rademan/ Foto24/Gallo Images)
Eastern Cape judge president Selby Mbenenge allegedly sent a secretary in the division a photo of his genitalia, followed by messages suggesting fellatio, she told a judicial conduct tribunal on Wednesday.
Andiswa Mengo told the tribunal, headed by retired Gauteng judge president Bernard Ngoepe, she believed Mbenenge was trying to groom her, and that his myriad inappropriate messages left her feeling “like a cheap woman”.
The alleged picture in question, which was subsequently deleted, was sent on the evening of 17 June 2021. Mbenenge, the first senior judge in the country to risk impeachment for sexual misconduct, has denied sending the image.
Mengo told the tribunal it showed “his private part with hair exactly the same colour of his hair on his head”.
She added that it clearly appeared to have been taken in a toilet cubicle. No face was visible in the picture.
Within the space of a minute, Mbenenge sent a message that read “BJ=?”.
Mengo told evidence leader Salome Scheepers she did not reply to the message, which she understood to be shorthand for “a blow job”.
She testified that shortly afterwards Mbenenge sent a message reminding her to delete their exchange. It was not the first time in their text exchanges, which spanned from June to November 2021, that he had asked her to delete a conversation.
She said she responded to the effect that there was no need to be worried. Mengo did download some of the messages and WhatsApp stickers she received from Mbenenge but does not have a record of the lewd photograph in question.
It was the 37-year-old single mother’s third day of testimony.
On Tuesday, she told the tribunal that on 16 June, a public holiday, she had received a flurry of WhatsApp messages from Mbenenge. Some of these were pornographic and were sent to her by the judge with the accompanying request that she select the one which depicted her favourite sexual position.
These pictures were sent after Mbenenge repeatedly asked her to send him a photograph of herself. She told the tribunal she was irritated by the demand, and by the “disgusting” turn of the conversation, and did not comply.
Instead, she said, she uploaded a photograph to her WhatsApp status, where Mbenenge commented approvingly.
Mengo has faced questions about the nature of her responses to Mbenenge, some of which plainly read as ambiguous.
Ngoepe on Tuesday cautioned that he was confused by some of her responses, which could be interpreted as double entendres, and that no matter how difficult this may prove, the tribunal needed to obtain clarity as to what transpired.
He foreshadowed what is expected to be brutal questioning by Mbenenge’s counsel, advocate Muzi Sikhakhane, by saying there were able advocates involved but that if need be, the tribunal itself would pursue such.
At issue is whether what transpired was consensual, as Mbenenge has claimed to a judicial conduct committee of the Judicial Service Commission, while casting his exchanges with the complainant as flirtatious and playful. If his advances were not unwanted, an impeachable charge cannot be sustained.
Mengo told the panel that because of the vast power disparity between herself and the senior judge she feared that she could lose her job, and hence tried to rebuff his advances in a manner that would not attract retaliation.
On Sunday 21 June 2021, she sent Mbenenge a message wishing him a happy Father’s Day at about 6am.
Evidence leader Salome Scheepers, noting that she initiated this exchange, asked why she did so and Mengo replied “because he is a father after all”.
The record shows that Mbenenge politely thanked her. Under questioning from Scheepers, Mengo said that she sent similar messages to colleagues in the division, including another judge.
In this same week, Mengo received a message, subsequently deleted, which she said she recalled as depicting a man and woman engaged in oral sex.
She responded to this with a row of laughing face emojis but in the same conversation told Mbenenge that he was making her feel “shy”. He inquired why. She replied: “Do you see yourself?”
Scheepers paused to ask her why she responded to the video with laughing faces. Mengo said she believed it was a better route than responding in writing.
She responded to his question as to her embarrassment by saying she was in East London, and it would be better if they were “facing each other”, explaining to the tribunal that she felt ready to confront him about the inappropriate nature of his messages to her.
Mengo has been testifying through an isiXhosa translator and at this point in her testimony, she corrected her translator who had interpreted her text to Mbenenge as also meaning “see each other”.
Mengo suggested that the second interpretation had been loudly whispered by Mbenenge, effectively accusing him of leading the translator.
Ngoepe asked Mengo if this was indeed her contention, before the translator firmly denied that she had heard a whisper or would be influenced by the respondent even if he had tried to prompt her.
The hearing proceeded with Scheepers noting that in the same exchange Mengo had commented on a message from Mbenenge with the word “cute”. Mengo explained that she was responding to a photograph of himself the judge president had sent.
When Scheepers asked why she chose to respond in this manner, she said he was younger in the photograph, his face was unblemished and he was wearing a blue shirt. She stressed that cute meant “beautiful”.
Scheepers said the question remained, to which Mengo replied that her answer also stood, and repeated her remark about the judge president’s appearance in the photograph.
The hearing was scheduled to continue on Thursday.