Eastern Cape judge president Selby Mbenenge’s legal team on Tuesday argued at the judicial conduct tribunal that the complainant accusing him of sexually harassing her misled the hearing by omitting “disgusting” messages in which she reciprocated his sexual advances.
The complainant, judges’ secretary Andiswa Mengo, had testified on Tuesday, the seventh day of the tribunal, that Mbenenge’s persistent sexual advances towards her left her traumatised.
“It broke me. It took away the kindness that I have always shown my colleagues. It stripped me naked and tore me. It made me a loner,” Mengo said when asked by advocate Salome Scheepers about the impact of her interactions with Mbenenge.
This is the first tribunal investigating a sexual harassment complaint against a judge and puts a spotlight on judiciary policies and how sexual complaints within the fraternity are treated.
The tribunal’s purpose is to determine whether Mbenenge’s conduct in his engagements with the subordinate constituted sexual harassment.
In law, sexual harassment is defined as “unwarranted conduct which is persistent or serious or creates an intimidating environment which is related to sex, gender or sexual orientation”.
Scheepers wrapped up leading evidence on Mengo’s testimony on Tuesday.
Mengo’s legal representative advocate Nasreen Rajab-Budlender asked why she sometimes sent messages that seemed to entertain Mbenenge’s sexual advances. Mengo said she sent sexually suggestive messages to Mbenenge after he was not deterred by her rejecting him.
“We are talking about a powerful person in charge of the province. It was hard to say ‘no’ to him. Though I did several times, he did not listen to me. More than anything, I was scared of how he would treat me at work. I did not know what he was going to do to me,” Mengo said.
Acting for Mbenenge, advocate Muzi Sikhakhane in his cross-examination argued that Mengo “misled” the tribunal by not detailing her “sexual responses” in her affidavit.
More than anything, I was scared of how he would treat me at work. I did not know what he was going to do to me.
— Andiswa Mengo
Mengo, however, did attach copies of the WhatsApp conversations in her complaint reflecting her responses.
“In fact, you do not talk much about what you said. What that means is that you do not completely set out the entire context of the conversations. You say less about what I think are the graphic statements that you made.
“In fact, there is nothing graphic that gives us the impression that you also sent salacious messages. Can I put it to you that you did not want those determining the panel at that point to know that you too sent disgusting things?” Sikhakhane asked Mengo.
Mengo disputed this, saying her complaint was not misleading.
“In fact, we do not know reading here [the complaint] that you said you do not like a particular sex position but like to be surprised. You will agree with me that without those being put [on record], one does not know that you were reciprocating the disgusting messages.
“The version of my client is that certain chats, some of them salacious, took place between the two of you. Do you agree with me that at some point you were exchanging equally salacious messages?”
Mengo agreed that she did send salacious messages.
Sikhakhane said that Mengo did not communicate her discomfort to Mbenenge about the sexual advances. He argued her failure to communicate this could be construed as “consensual”.
Mengo agreed.
While Mengo had not been direct in rejecting Mbenenge’s advances, on June 20 2021, when he asked her on WhatsApp whether they could be intimate after she had requested to meet him in East London, she rejected him.
Sikhakhane argued Mengo even then “took a long route” to tell Mbenenge “no”.
She initially responded to the request by referring Mbenenge to a Bible verse, Psalm 1:1 from the Xhosa version of the Bible, telling him to pay attention to the first word, which is “no”. She then directly responded to his question with a “no” written in bold capital letters, adding “we should meet but not become intimate”.
The judge president responded: “What if we melt, which is not impossible?” To this she responded: “It is impossible.”
Mengo told the tribunal her direct rejection did not deter Mbenenge from continuing to talk about the matter.
Later in the conversation, Mbenenge sent her two messages, which were subsequently deleted, to which Mengo replied saying, “Jesus”. She told the tribunal one of the deleted messages was a picture of a male private part.
Responding to her “Jesus” comment, Mengo said Mbenenge responded by saying: “Why put it this way? Looks delicious?”
Sikhakhane argued that Mengo had the option not to answer Mbenenge’s message to communicate her discomfort but chose to respond. She said it was not easy not to answer.
The tribunal hearing continues on Wednesday.
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