Eastern Cape Judge President Selby Mbenenge. (Nelius Rademan/ Foto24/Gallo Images)
Power dynamics in the workplace played a critical role in shaping how Andiswa Mengo responded to alleged sexual harassment by Selby Mbenenge, gender-based violence specialist Lisa Vetten told the judicial tribunal into the conduct of the Eastern Cape judge president when it resumed on Monday after a break.
Mbenenge is accused of sending explicit text messages to Mengo, who worked as court secretary at the Mthatha high court. The sexual harassment allegations include an act of indecent exposure in the judge’s chambers.
The tribunal seeks to determine whether Mbenenge is guilty of gross misconduct and should be impeached from the bench. It resumed on Monday after adjourning in April to allow time for witness testimony from a gender expert before Mbenenge’s own testimony, and will continue until 11 July.
Drawing on more than two decades of experience, Vetten assessed the nature of the interaction between Mbenenge and Mengo, including whether a power imbalance affected
her responses to his messages. Mbenenge allegedly sent unsolicited WhatsApp messages to Mengo between June 2021 and February 2022.
On Monday, evidence leader Salome Scheepers asked Vetten to analyse 47 days of WhatsApp conversations, comprising 837 messages — 526 from Mbenenge and 311 from Mengo.
Vetten began her work in the 1990s through the Sexual Harassment Education Project, where she trained workers affiliated withtrade union federation Cosatu to develop codes of conduct. She later contributed to policy development in the Department of Higher Education and Training and served as co-chair of the Gender Equity Office at the University of the Witwatersrand.
Vetten explained that she used the 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace to guide her assessment.
The code, published by the department of employment and labour under the Employment Equity Act, defines sexual harassment as physical conduct such as unwanted touching; verbal and non-verbal conduct including suggestive comments or images and the creation of a hostile workplace environment. It also refers to quid pro quo harassment, where sexual favours are sought in exchange for opportunities or favourable treatment.
Vetten said her task was to examine whether the complainant was in a position to express discomfort and to ask the judge to stop. She said she considered how consent operates in conditions of hierarchy, formality and fear of reprisal.
“She was using different strategies to communicate reluctance and unwillingness,” Vetten told the tribunal.
She identified six strategies that Mengo used to deflect or resist the alleged harassment: deflection, where she changed the subject; deviation, where she gave ambiguous or incomplete answers; deferral, where she postponed the conversation; silence, where she did not respond; accommodation, where she sought to placate without encouraging and resistance, where she said “no” directly.
“There were a range of different strategies being used and they changed over time. You can see her figuring out what does and does not work and adapting her efforts accordingly,” Vetten said.
She said that meaningful consent must be more than a superficial “yes” and that it requires the opportunity to freely choose. “The code recognises that in an ideal world, when someone says or does something inappropriate, we can say, ‘Stop, this is making me uncomfortable.’ But the reality is that people often cannot respond like that.”
In her view, consent should not be judged through the lens of subjective perfection, but instead by the circumstances in which it occurs. She argued that coercive environments — particularly those marked by unequal power — compromise an individual’s capacity to say no.
“Coercive circumstances help us understand that it is hard for someone to say no because of the authority that a person wields. That person is in a position where they can make life very unpleasant,” she said.
Asked by Scheepers whether the code implies that consent does not always require saying “no” explicitly, Vetten agreed, saying that the code recognises indirect expressions of refusal. She added that prior consent does not imply blanket permission for future conduct.
“Consent to one thing does not imply consent to any behaviour that follows,” she said.
Victims often adopt “sophisticated strategies of avoidance”, which include replying late, using humour or remaining silent. She said Mengo’s delayed responses and occasional use of humour were consistent with such avoidance strategies.
She described one WhatsApp exchange in which a work-related conversation abruptly shifted when Mbenenge requested nude photos. The messages showed a pattern of rapid-fire texts as a style of pressure, which Vetten characterised as persistent. She also noted Mbenenge’s frequent use of the “angel halo” emoji after making inappropriate requests.
“Sometimes he would use it after saying, ‘Give me a photograph,’ and then follow up with the emoji of an angelic halo,” she said.
Vetten’s assessment of the text messages concluded that Mengo’s responses lacked enthusiasm and reflected discomfort. She observed that the power disparity between the judge and the legal professional complicated Mengo’s ability to express herself freely.
While Mbenenge was not her direct supervisor, his seniority, public stature and institutional influence created a context in which dissent could carry professional risk.
“Saying ‘no’ to someone who is your senior is difficult. It is an inversion of the workplace relationship and raises questions of victimisation if the response is not what is expected.”
Vetten also highlighted that sexual harassment cases are more complex in environments with multiple layers of hierarchy, such as the judiciary. The formality and authority embedded in such institutions increase the vulnerability of those lower down in the structure.
She said her testimony aimed to dispel myths about sexual expression, particularly those that rely on biological essentialism to justify harmful conduct. “Ideas about biological differences in sexual expression are often used to excuse rape. These myths allow abuse to fester,” Vetten said.
However, Mbenenge’s legal representative, Muzi Sikhakhane, questioned Vetten’s impartiality and the objectivity of her expert analysis: “A tribunal cannot, and should never, trust an expert who supports, or is sympathetic to, a particular version of a litigant.”
He said that expert opinion should be an independent product of the witness, uninfluenced by the outcome of the case.
Mbenenge has consistently denied sexual harassment, stating that the WhatsApp exchange were consensual. According to Sikhakhane, an expert should not enter the forum to support a particular witness but must present facts honestly, frankly and objectively. He cautioned that omitting evidence, such as Mbenenge’s answering affidavit to the texts, is inconsistent with an unbiased analysis, which undermines the purpose of expert testimony.
Sikhakhane further argued that parts of Vetten’s analysis ventured into the territory of psychoanalysis, which he suggested was outside the appropriate bounds of expert interpretation for that forum.
The tribunal was due to continue on 1 July with Sikhakhane’s cross-examination.