Eastern Cape judge president Selby Mbenenge “did not take no for an answer” when a judge’s secretary, accusing him of sexual harassment, rejected his request for intimacy, gender expert Lisa Vetten told the judicial conduct tribunal on Monday.
Chaired by retired judge president Bernard Ngoepe, the tribunal resumed on Monday, continuing its probe into a sexual harassment complaint made by judge’s secretary Andiswa Mengo.
Mengo is accusing Mbenenge of making “unwarranted” sexual advances towards her at work and in WhatsApp conversations.
Gender expert Lisa Vetten testified Mengo rejected Mbenenge’s sexual advances and his request for explicit pictures often. She analysed WhatsApp texts of Mengo and Mbenenge.
Her evidence is a crucial part of the tribunal’s probe in determining whether Mengo consented to sexual advances made by Mbenenge.
Should the tribunal find Mbenenge guilty of gross misconduct, it could cost him his top job.
Mbenenge’s legal team, led by advocate Muzi Sikhakhane, argued that Vetten’s analysis was biased because she did not have a full record of the file.
Vetten testified Mengo used different strategies to reject Mbenenge’s advances.
Vetten, who has written several academic papers on gender relations and is affiliated to the Wits Institute for Social and Economic Research, said: “When she was asked for something, she used different strategies to communicate what was reluctance and unwillingness.
“She used deflection, changed the subject into something else, used silence, she tried to accommodate the requests and she also used active resistant, saying, ‘no’.”
In one of the conversations between Mengo and Mbenenge, the judge president asked for a half-naked picture of Mengo.
“She first tried to avoid it by saying the phone deleted everything. He did not take that and said ‘a few that you got’. She did not respond, and he followed up; she then said she was at the gym. This was her saying no without saying no,” Vetten said.
Ngoepe, chair of the tribunal, asked whether they could not take Mengo’s answer that she was at the gym at face value. He asked if Vetten was of the view she was not at the gym.
Vetten said she was not disputing Mengo was at the gym, but her analysis was based on context and how Mengo previously responded to the request.
She said Mbenenge requested the pictures about 12 times and she did not send them.
“There is a conversation in which he [Mbenenge] calls her tricky. He acknowledges that she is avoiding giving him what he wants.”
Vetten said Mengo directly rejected Mbenenge in some of the conversations. She referred to a conversation on June 20 2021 in which Mbenenge had asked Mengo on WhatsApp whether they could be intimate after she had requested to meet him in East London.
Mengo 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, “no”.
She then directly responded to his question with “no”, written in bold capital letters, adding that “we should meet but not become intimate”.
The judge president responded: “What if we melt, which is not impossible.” She responded by saying, “it is impossible”.
Vetten said from her analysis of that conversation the judge president did not take no for an answer.
“She twice told him no and said it was impossible. She made it clear there will be no intimacy. What I also see is him not taking no for an answer with the repetition of questions after she said no,” she said.
Evidence leader Salome Scheepers asked Vetten if Mengo was a willing participant in the conversation.
Vetten said: “No, she comes across as reluctant and unenthusiastic. I do not know how clear you can be when you say no to somebody. She said it a couple of times.”
Vetten said analysis of the conversation should take into consideration the imbalance of power between Mengo, in a junior position, and Mbenenge, the head of courts in the province.
She said subordinates struggled to express themselves when dealing with superiors.
Sikhakhane asked Vetten whether she was biased in her analysis.
“You focused on her [Mengo’s] testimony. Do you think when you do not have a feel of the entire facts, an intellectual can call themselves objective if they have not read the entire record?” he asked.
Mbenenge’s stance is that the conversations between him and Mengo were consensual.
“My analysis is predominantly based on the WhatsApp messages, which is what you have,” she said, disagreeing that her analysis was not objective.
Sikhakhane said because Vetten did not have Mbenenge’s affidavit, as he opted not be cross-examined, her analysis was biased and “unhelpful” to the tribunal.
Vetten disagreed. The tribunal continues on Tuesday.
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