Eastern Cape judge president, Selby Mbenenge. (Judges Matter)
Eastern Cape Judge President Selby Mbenenge finally took the stand on Monday in a months-long tribunal on sexual harassment allegations against him, saying his car tracker showed he had attended a judicial staff meeting, gone to the bank and delivered a lecture on the day Andiswa Mengo accuses him of exposing his genitals to her.
Mbenenge began his testimony by refuting the claim that he exposed himself to Mengo, calling the allegation “lies” and “malicious” and saying it was part of a concerted campaign to discredit him.
“It is lies, it never happened,” said Mbenenge, denying the alleged 15 November 2021 incident. “From the time I arrived in my chambers around 9am, until I left around noon, I had no interactions whatsoever with Ms Mengo.”
On the day, Mbenenge said he had attended a judicial staff meeting in the morning, gone to the bank, delivered a lecture to students and gone to court.
With regards to the allegations of impropriety, Mbenenge said he did not believe there was anything wrong with engaging in a romantic relationship with a junior colleague, stating he was neither her supervisor nor her employer.
“I am a member of the judiciary. The complainant is a member of the executive. She is employed in terms of the Public Service Act. I am not her supervisor,” he told the tribunal, headed by former Gauteng judge president Bernard Ngoepe.
Mbenenge also denied sending nude photographs and making lewd comments to Mengo, saying his remarks about her clothing the day before the alleged incident were about courtroom decorum and were not sexually suggestive. Mengo herself, he said, had initially written in her affidavit that the comments had not offended her.
“Today, the evidence leader has the audacity — with due respect to her — to say that, among other things, I am being charged with ridiculing the complainant,” Mbenenge said, referring to the tribunal’s evidence leader Salome Scheepers. He maintained that, as judge president, he is tasked with upholding professional standards, including the dress code of legal professionals.
The judge president also rejected Mengo’s claim that she was the last person to leave his chambers on the day of the alleged incident, citing the court sign-out register, which shows that his then secretary, Zintle Nkqayi, signed out after Mengo.
Mbenenge’s defence counsel, Muzi Sikhakhane, outlined four themes for cross-examination for the last week of the tribunal: Mbenenge’s personal history and career; the alleged incident of 15 November; the alleged photos of his private parts and flirtatious messages exchanged via WhatsApp.
He was surprised that the tribunal included allegations of “incapacity” and “gross incompetence”, which he described as vague and unjustified. Appointed as judge president in 2017, Mbenenge told the tribunal that he has written 13 reported judgments as a high court judge and six as judge president.
Sikhakhane said Mbenenge’s record was not presented to boast, but to refute claims of incapacity and incompetence, which had nothing to do with the other charges. Mbenenge said he had introduced a uniform judicial case flow management system in the Eastern Cape high court, which reduced backlogs, as part of his successes.
He also described challenges faced during his tenure, including a 2020 incident when a court judgment was published by the Daily Dispatch before being handed down. He said he had confronted a colleague whose spouse worked at the media house. Mbenenge also cited resistance from some residents when the names of Port Elizabeth and Grahamstown were changed to Gqeberha and Makhanda, respectively.
Sikhakhane asked Mbenenge about recent media portrayals of him as a “sexist judge”, suggesting he had become invisible in the judiciary because of the allegations. Mbenenge said he had endured public humiliation and felt presumed guilty before due process had run its course.
“I have appointed females to act in my division. I have encouraged secretaries to study law,” he said, arguing that the notion that he views women as objects “has no factual basis”.
He added: “I see women as persons who can engage in whatever form of relationship. What is important for them is to be treated as persons.”
Asked about the power relations between a judge president and a junior legal professional, Mbenenge said people should be allowed to form relationships as long as they were consensual. He pointed out that some judges have married their secretaries.
“It is indeed true that it came to pass that I became interested in relating with the complainant and I do not believe that was wrong,” he said. “Flirtation is a playful way of interacting with someone you are interested in having a relationship with.”
Addressing allegations that he had interfered in administrative matters to benefit himself, Mbenenge said he had no role in the hiring of court secretaries and that accusations of “swapping secretaries” were false.
He said he had chosen to shield his family from the tribunal to protect their privacy. “I saw myself as someone who was presumed guilty until proven innocent. That is the story of my life,” he told the tribunal.
Mbenenge suggested that a media campaign proposing that he “step down” as Eastern Cape judge president had been waged against him and that he had been unfairly criticised for continuing to preside over matters, despite the ongoing tribunal. “I was viewed as an immoral person, even while due process was still in motion,” he said.