Eastern Cape judge president, Selby Mbenenge. (Judges Matter)
Counsel for Eastern Cape judge president Selby Mbenenge on Tuesday began cross-examining the colleague who has accused him of sexual harassment, and put it to her that she was dishonest in her complaint and in her testimony about her role in their relationship.
Muzi Sikhakhane SC told Andiswa Mengo that her responses to text messages from Mbenenge that she qualified as “disgusting” were not those of an honest complainant who was repulsed by his crude sexual advances.
Sikhakhane paused for some time on a laughing face emoji Mengo sent in response to a sexually solicitous message from Mbenenge.
He said this contradicted her earlier testimony that she was repulsed by his request for oral sex, after asking her not only what she understood by the judge’s abbreviation of the slang word for the act but to describe what it entailed.
Sikhakhane said because Mengo had previously testified that when she had received the emoji from Mbenenge in an earlier exchange, she read it as meaning the subject they were discussing at that time was “a laughing matter”.
Therefore, he said, she was fully aware of what the emoji conveyed and was entertaining Mbengenge’s advances by replying with the same in a sexually-charged exchange in which he had suggested fellatio.
Mengo has, in seven days of testimony to a judicial conduct tribunal, been questioned at length by evidence leader Salome Scheepers about her responses to Mbenenge’s relentless pursuit, which he has said was “playful”, “flirtatious” and consensual.
She conceded that although she rebuffed him in no uncertain terms a number of times, at others she appeared to go along with the overt sexual tone of the texts. Mengo said she did so after realising that her rejection had no effect and had hoped that by responding as he plainly hoped, she would be left in peace.
The record shows this approach did not work because Mbenenge did not relent.
Much of the testimony has revolved around messages the judge president subsequently deleted. Mengo testified that he frequently sent pictures of his genitalia, as well as pornographic images, from which he invited her to choose her preferred position during intercourse.
She testified that in one instance, after months of such messages, she had forwarded one to a colleague in the division who immediately asked whether it came from Mbenenge because he had a reputation for such conduct.
She said she did so both for the sake of preserving evidence, because he had taken to deleting compromising messages, and to communicate to someone what she was enduring.
But Sikhakhane submitted that regretting that Mbenenge was deleting messages was not the behaviour of someone who did not wish to receive messages of this nature.
He also raised a text message Mengo sent to Mbenenge on Father’s Day in 2021. It was one of the few instances where Mengo had initiated a WhatsApp interaction with the judge president.
Asked by Scheepers why she had thought of texting Mbenenge early on a Sunday morning to wish him a happy Father’s Day, Mengo replied that he was “a father after all”. She had also sent wishes to other judges in the division.
But Sikhakhane noted that Mengo had addressed Mbenenge by his clan name, and said doing so amounted to employing a term of endearment.
“We have travelled a little distance with all disgusting things. You have not communicated your disgust.”
Mengo replied, speaking through an isiXhosa translator: “Yes.”
Sikhakhane continued: “In fact then for all the instances where you want the panel to understand were disgusting, you have actually responded with a response revealing the opposite.”
He said she had omitted in her initial complaint to a judicial conduct committee of the Judicial Service Commission the large number of messages in which she did not disparage the respondent’s conduct, but reciprocated with unambiguous sexual innuendo.
“Madame, the theme I have been running with you is that you do not communicate in this theme what you were saying and communicating, particularly the disgusting parts and those where you expressed endearment, you don’t,” he said.
“It is because you do not want to show the endearment you were expressing.”
It has been expected that Sikhakhane would hone in on Mengo’s equivocation between rejection and indulgence, and would argue that she was encouraged to bring a complaint to persecute a senior member of the judiciary.
Mbenenge is the first judge to risk impeachment for sexual misconduct. But, as Sikhakhane stressed, this will turn on whether the interaction, which stretched from June to November 2021, was consensual.
The 37-year-old single mother has told the tribunal that, given the power discrepancy between her and the head of the division where she worked as a secretary, she felt vulnerable and demeaned.
When asked on Tuesday by her legal counsel, Nasreen Rajab-Budlender, what effect the experience has had on her, Mengo said she felt stripped of her dignity.
She added: “Socially, I cannot even hold a relationship.”
Asked how the interaction with Mbenenge affected her work, Mengo said she was no longer as productive as before.
The cross-examination is to continue on Wednesday.