Eastern Cape judge president Selby Mbenenge. (Office of the Chief Justice/ S Lioners)
Evidence leader Salome Scheepers argued that it was inappropriate for Eastern Cape judge president Selby Mbenenge to initiate a relationship with the court secretary of another judge.
On Wednesday, Scheepers began her cross-examination of Mbenenge — who has been accused of sexual harassment by former court secretary Andiswa Mengo — by focusing on an 8 June 2021 incident in which he asked for her phone number at her desk when he was visiting a fellow judge.
The evidence leader said he initiated a conversation with Mengo in a way that abusers often do — from a professional or neutral point — only to turn it sexual later. Mbenenge countered that he had asked for her number as a “social being”, rather than it being inappropriate workplace behaviour.
Mengo has testified that Mbenenge engaged in unwanted sexual advances; sent pornographic material, including photos of his private parts; requested half-naked photos and exposed himself to her at his chambers.
At the start of his testimony this week, Mbenenge testified that his car tracker showed he was not at the office during the alleged flashing incident but had in fact gone to the bank, conducted a lecture and gone to court. His former secretary Zintle Nkqayi corroborated Mbenenge’s version of events.
The seven month-long tribunal has seen the contested meaning of WhatsApp text messages forming a key part of the evidence — with the complainant stating they showed persistent harassment while defence argued that they illustrated mutual interest between consenting adults.
Both sides have presented conflicting interpretations of the salacious texts, lewd photos and sexually suggestive emojis, with Mbenenge saying this was part of the normal courting process. Mengo says she felt harassed and was unsure how to respond.
Mbenenge admitted he had sought a romantic relationship with Mengo and said he saw nothing wrong with this as he was not her supervisor or employer. He described his interactions with her as “sensual”, as opposed to sexual, as they had not been physically intimate.
However, Mengo has said the workplace power imbalance made it difficult for her to reject his advances outright and that she had employed different methods to rebuff him.
After he attempted to lead evidence and read from his affidavit — as he had done earlier in the week with his lawyer Muzi Sikhakhane — Scheepers interrupted Mbenenge to say he should simply answer her questions. The senior judge said he did not like the manner in which the evidence leader had spoken to him.
Mbenenge and Scheepers went back and forth about whether it was appropriate for a judge president to ask for the phone number of the secretary of another judge. Scheepers argued this was a breach of professional boundaries. Mbenenge responded that he had never imposed himself as a judge president.
“In our social set-up, it doesn’t matter what culture it is, you don’t deal with people from the perspective of, ‘Do you know that I’m a JP,’” Mbeneng said.
He argued that he was not interacting with Mengo as the Eastern Cape’s top judge, but Scheepers said his seniority was implied and formed part of the subliminal conversation.
On the question of power, gender expert Lisa Vetten recently testified that Mengo’s WhatsApp responses showed someone who used various tactics to navigate an uncomfortable workplace situation by deflecting, avoiding, deferring and appeasing.
Scheepers read Mengo’s testimony in January in which she said: “I had to respect him as someone in charge — even in the manner I would have to respond to him, I had to be very cautious.”
Mbenenge said Scheepers was cherry-picking sentences from Mengo’s evidence, saying that, at other times during their text exchange, the complainant had said to him: “Then you must determine what you are looking for,” which he said showed the conversation had evolved between adults and not colleagues.
“You agree then that this conversation turned from being social to being more sensual?” asked Scheepers.
“True,” replied Mbenenge.
“Why did you ask for a photo from her?” Scheepers asked.
“Because I was steering things in that direction based on the fact that I had developed an interest in her during the conversation,” Mbenenge responded .
“But if we look at the conversation before you asked her for the picture, you hadn’t established that she wanted this relationship that you are seeking,” Scheepers said.
“I have not been charged for flirting in a particular manner, as against another particular manner. The issue is whether the chats were welcomed or unwelcome,” the judge president said.
“That’s the point — you have to establish that it is welcomed. The fact that you asked for a photo; you haven’t established whether that would be welcomed at that stage,” Scheepers insisted.
Mbenenge said the evidence leader might have a particular way she would prefer someone to show interest in her, to which Scheepers replied that he should not get personal with her during the cross-examination.
Throughout the cross-examination, Mbenenge refused to answer Scheepers’s questions with either “yes” or “no”, as requested, preferring to read lengthy paragraphs from the evidence book. This was contrary to his lawyer Sikhakhane’s cross-examination of Mengo in January, when he took exception to her idiosyncratic responses.
Another point of contention between Scheepers and Mbenenge was the interaction between the judge and Mengo, who had replied, “I will do,” in response to his request for naked photos and later apologised for not sending them because her phone was not working. She also said she had been busy.
Scheepers said Mengo kept putting off the request to signal her discomfort, to which Mbenenge said Mengo had not said she hadn’t wanted to. He added that, after some persuasion, she eventually sent some photos.
Scheepers argued that his definition of persuasion constituted harassment. He ignored what he did not want to accept and read what he wanted into the conversations, stating that asking Mengo for photos 11 times in one day was evidence of this.
Mbenenge maintained his stance that this was part of his persuasion tactic, similar to when he would respond to her WhatsApp photos of a dress by stating: “It looks stylish.”
“Your proposition seems to be predicated that she was not willing to send a picture and that she did not. That notion is not correct — she did send a picture,” said Mbenenge.
“It is also clear that you persuaded and persisted in asking for pictures,” said Scheepers.
She argued that, when Mengo had replied “earn it” in response to the photo request, it was because she felt uncomfortable and unsure how to respond to a senior colleague. Mbenenge vehemently disagreed.
Presiding officer, former Gauteng judge president Bernard Ngoepe, said that irrespective of the court of public opinion, the tribunal members would read every page of the transcript of the text messages before making a final decision on whether Mbenenge was guilty of misconduct.
“We are going to read every single message and understand it in a way we are capable of understanding the messages,” said Ngoepe.
The tribunal is set to conclude on Thursday 10 July. Afterwards the Judicial Conduct Tribunal will make recommendations to the Judicial Service Commission as to whether Mbenenge is guilty of misconduct. The sexual harassment charge could lead to impeachment, if the commission makes further recommendations to the National Assembly.