Eastern Cape judge president Selby Mbenenge. (Office of the Chief Justice/ S Lioners)
Flirtatious text messages between Eastern Cape judge president Selby Mbenenge and junior legal professional Andiswa Mengo were at the centre of Tuesday’s session of the judicial conduct tribunal in which he faces sexual harassment charges.
Mbenenge told the tribunal that the tone of the text exchanges was “sensual” rather than sexual, and emphasised that he and Mengo had not been physically intimate.
When he first took the stand on Monday, Mbenenge testified that his car tracker
showed he was not at the Mthatha high court during the date of an alleged incident of indecent exposure at his chambers and said the relationship with Mengo was consensual.
Taking the stand months into the tribunal, Mbenenge insisted that he did nothing wrong in pursuing a romantic relationship with Mengo, saying he was not her supervisor and blamed a smear campaign for the harassment claims.
Mengo has accused Mbenenge of sexually hounding her while she was based at the Mthatha high court, including sending inappropriate WhatsApp messages and requesting nude photographs of her.
Gender expert Lisa Vetten has testified that because of workplace power imbalance between Mbenenge and Mengo it would have been difficult for her to outrightly reject his sexual advances.
Text messages have taken centre stage in the evidence, with digital forensic analysts and linguistic experts unpacking their subliminal meanings. The complainant says they show harassment but Mbenenge’s lawyers say the tone was neutral and standard.
On Tuesday, Mbenenge focused his defence on screenshots of nude photos he is alleged to have sent to Mengo on 16 June 2021, requesting her reciprocation the next day. He denied sending any such photos and said there was no concrete evidence to support the claim.
In her affidavit, Mengo stated that Mbenenge had sent several photos of his private parts and pornographic material, which he allegedly deleted shortly after sending. She said she managed to capture a screenshot of one image.
But Mbenenge highlighted what he called inconsistencies between Mengo’s affidavit and her earlier testimony during the first sitting of the tribunal in January. He questioned the absence of the alleged nude photo, stating that no such image had been presented as evidence.
Reading from her complaint, Mbenenge quoted Mengo’s testimony of her recollection the day after he requested a nude photo from her: “On 18 June 2021 he asked me if we were done with what we were talking about, and I said no.” He said this suggested ambiguity, not rejection.
Mbenenge said that instead of sending him a nude photo as requested, Mengo had posted a photograph of herself on her WhatsApp status, to which he responded with a message expressing pleasant surprise.
He further claimed that the following day, Mengo sent him a Father’s Day message using his clan name, “Jola”, which he described as a term of endearment. Mengo has said she wished Happy Fathers Day to the older men at the office she thought of as fathers.
Mbenenge said he interpreted this as a continuation of the flirtatious tone and an indication of mutual interest. He said the phrase “earn it”, which Mengo used during their exchange, was not a rejection but an invitation to persist in romantic pursuit.
“What I am doing at this point is to demonstrate the incongruity between the complaints [texts and testimony]” Mbenenge told the tribunal.
He argued that the content and context of the text messages showed a mutual and consensual romantic dynamic, not harassment. Asked by his counsel, Muzi Sikhakhane, whether he had ever picked up discomfort from Mengo, Mbenenge responded, “Not at all.”
He described their conversations as “deeply sensual”, even when discussing sexual positions, and insisted this did not amount to sexual engagement or harassment but rather playful flirtation.
Mbenenge dismissed the suggestion that Mengo had firmly said “no” multiple times during their exchanges, stating he did not encounter a “no” when reading the transcript of the text messages.
Mbenenge said Mengo had complimented him as “handsome” twice and, at one point, when he asked, “Do you reckon we can be intimate this week?”, she responded by saying she would answer in person.
The text conversations, according to Mbenenge, eventually became confusing, particularly when he sought to meet in person and Mengo failed to give a clear response.
The judge continuously emphasised the “shame” he had to endure because of the explicit nature of the allegations based on Mengo’s testimony without actual evidence of photos he is accused of having sent.
The tribunal continues on Wednesday with further cross-examination by Sikhakhane and the evidence leader, Salome Scheepers.