Eastern Cape Judge President Selby Mbenenge. (Nelius Rademan/ Foto24/Gallo Images)
Andiswa Mengo on Friday firmly disputed Eastern Cape judge president Selby Mbenenge’s denial that he exposed himself to her in his chambers and asked for oral sex.
“He is lying,” Mengo said under cross-examination when Advocate Muzi Sikhakhane told her it was Mbenenge’s version that the incident never transpired.
Mengo has testified at the judicial conduct tribunal hearing in her complaint against Mbenenge that it was an encounter, on 14 November 2021, that finally prompted her to denounce the chief justice after enduring months of sexual harassment.
She said that he called her into his office after he recognised her footsteps on the tiled floor of the corridor, and pointing to his erection, asked her whether she could see the effect she had on him.
Reading from the statement attached to her complaint, she said he then asked her in isiXhosa: “Don’t you want to suck it” and unzipped his trousers.
Mengo said she ran from his chambers and went home.
Sikhakhane said Mbenenge would testify that the incident, as she had related it, never happened, to which Mengo replied that the judge president was lying.
“The JP will also tell you that he can account for his entire day on the 14th, that he was giving a lecture, went to the bank, and the only time he met you that day was shortly after tea time in his secretary’s office,” Sikhakhane continued.
Mengo asked if she may comment on this statement, before saying: “He is not telling the truth.”
It was her testimony that Mbenenge’s secretary was not in her office next to his chambers when the incident took place, but Sikhakhane said she would come to testify that she was there at all times on the day in question.
“I will wait for her to come, but that is not correct,” replied Mengo.
It was the third and final day of sometimes bruising cross-examination at the judicial conduct tribunal that began hearing her complaint against Mbenenge last Monday.
In closing, Sikhakhane submitted that Mbenenge would maintain that he did not harass Mengo, a former secretary for a fellow judge in his division, and did not abuse his authority by sending her text messages in which he made sexual advances.
He risks impeachment if her complaint is upheld, but this hinges on whether what transpired between them over a period of six months was consensual.
Mbenenge claims it was and has qualified their exchanges, in which he implored Mengo to send him photographs of herself and to agree to an intimate relationship, as “playful” and “flirtatious”.
The record shows that at times she objected to his crude WhatsApp messages and at others simply ignored him. But she also at times reciprocated and sent back messages laden with sexual innuendo.
She has testified that she did so because she hoped that if she replied in a manner that “pleased” the judge president, he would leave her in peace at last because it was clear that when she objected, he continued hounding her.
“His version will be that the conversations were not unwelcome,” Sikhakhane said, adding that his client would also plead that she never communicated to him that the exchanges left her feeling demeaned, as per her evidence to the tribunal.
Mbenenge would also deny that he abused his power in their relationship and that what transpired, while embarrassing because it was intended to remain private, constituted harassment.
“And he will say while the two of you may have to answer to your maker about that, it is harassment that he has to deal with before the panel,” Sikhakhane concluded.
Mengo, under questioning from her counsel, Advocate Nazreen Rajab-Budlender, reiterated on Friday that the power discrepancy between herself and the senior judge was such that she feared the consequences she would suffer if she confronted him or complained about his conduct.
“We are talking about someone who has powers, who can do anything. At work he is someone that one would be afraid of,” he said.
“And he would do it in such a way that he makes you feel it when he is present.”
During re-examination, leader Salome Scheepers asked Mengo to respond to Sikhakhane’s repeated submissions that Mengo frequently had the opportunity to tell Mbenenge in clear terms that his “sleazy” messages were offensive but failed to use it.
“The respondent did not want to discern my voice of me saying no, and someone of his age, it was not going to be myself having to tell him what is the difference between right and wrong,” came her reply.
Mengo was 37 at the time of the alleged harassment and Mbenenge is 23 years older.
Sikhakhane has told the tribunal that Mbenenge denied that he ever sent Mengo a picture of his penis, and that experts will testify that there was no trace on his phone of such an image or the myriad pornographic images she told the tribunal he sent her, then swiftly deleted.
She eventually started taking screenshots to preserve as evidence but Sikhakhane said it was not possible to reconcile the images she downloaded in this manner with the timing of the deleted text that alleged contained the original, offending messages.
He spent much of the final two days of cross-examination questioning her at length about the manner in which her formal complaint was filed, submitting that she filed an “improved” version after then chief justice Raymond Zondo was apparently not satisfied with the first.
Scheepers objected to the term “improved”, noting that if Zondo had reservations these may simply have been of a procedural nature.
Mengo said she was told that her first statement was misplaced, hence the need for a second. Sikhakhane has suggested that Mengo was guided by the office of the chief justice in composing the complaint.
He has indicated that he wants to subpoena Zondo to appear before the tribunal, and the chairman of the tribunal, former Gauteng judge president Bernard Ngoepe, warned him that he would have to make out a case for this step.
Mengo filed her complaint in late 2022. The tribunal heard on Friday that in January 2023 she received a threatening phone call warning her to withdraw to it.
Ngoepe said the hearing will resume from May 6 to 15.