Eastern Cape judge president Selby Mbenenge’s legal team on Wednesday scrutinised the testimony and affidavit of the complainant accusing him of sexual harassment.
Mbenenge’s lawyer, advocate Muzi Sikhakhane, on the eighth day of the judicial conduct tribunal argued that the complainant, judges’ secretary Andiswa Mengo, lied under oath and in her testimony about receiving pictures of a penis from him.
Sikhakhane cross-examined Mengo, questioning her on the picture of a penis she attached to her complaint, saying she received it from Mbenenge.
She previously testified the picture was from one of the messages Mbenenge subsequently deleted on their WhatsApp chats.
This tribunal has put a spotlight on judiciary policies and how sexual complaints within the fraternity are treated.
When asked by Sikhakhane which date the picture was sent, Mengo said she could not remember, adding she received explicit images more than once during their chats from June 2021 to November 2022.
“Let me put the version of my client, this is the part that embarrassed [him], that he never sent a picture depicting his private part. It is this picture that has tarnished the reputation of the respondent [Mbenenge] and probably broke his family,” Sikhakhane argued.
Mengo had earlier explained to the tribunal the attached images were not in chronological order with the chats and the dates differed.
She disputed Sikhakhane’s assertion that she could not give details because his client “never” sent it to her.
“These annexures do not follow the times in which incidents took place. It is not that he did not send the picture.
“When I was doing the evidence in chief there was a time when I was asked about deleted messages and I also said I do not remember if [the picture] was in-between the chats.
“I agree with the discrepancy [different dates] you [Sikhakhane] are referring to about the way it is attached in the affidavit,” Mengo said.
Sikhakhane said cellphone experts would testify before the tribunal, chaired by retired Gauteng judge president Bernard Ngoepe, that the picture depicting a penis was not found on Mengo and Mbenenge’s phone.
Mengo, however, said it would show up in her conversations with one of her colleagues. Mengo, on Monday, testified she sent the picture to two of her colleagues.
She said when she sent the picture to her colleague, Brenda Nguta-Jobela, she confirmed that others received explicit pictures from Mbenenge.
Sikhakhane again pushed Mengo about her responses to Mbenenge, saying she did not “expressly” reject the judge president’s advances.
Mengo disputed this, saying when Mbengene asked on June 20 2021 on WhatsApp whether they could be intimate, she rejected him.
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.”
Sikhakhane said Mengo in that conversation did not say Mbenenge must “stop” the conversation.
“I am saying in this conversation ‘What if we melt’. You do not stop him but instead, you say ‘You will hold yourself’ which means you will not melt,” Sikhakhane said.
The tribunal hearing continues on Thursday.
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