Gender-based violence expert Lisa Vetten said on Tuesday during cross-examination that, though she did not have access to the full file record of the sexual harassment case against Eastern Cape judge president Selby Mbenenge, her findings that the complainant was “reluctant” stood.
The judicial conduct tribunal investigating a sexual harassment complaint by made by judge’s secretary Andiswa Mengo continued on Tuesday with Mbenenge’s lawyer Muzi Sikhakane cross-examining Vetten.
Mengo is accusing Mbenenge of making “unwarranted” sexual advances towards her at work and in WhatsApp conversations.
Vetten has provided the tribunal with a report on her analysis of the WhatsApp texts of Mengo and Mbenenge. Her evidence is a crucial part of the tribunal’s probe in determining whether Mengo consented to Mbenenge’s sexual advances.
On Monday, she testified Mengo was reluctant and was unenthusiastic in her conversations with Mbenenge. She said Mengo used deflection, changed the subject, went silent and said no to Mbenenge’s sexual advances.
But Vetten conceded Mengo at times entertained and participated in conversations of a sexual nature.
Sikhakhane argued Vetten’s analysis was biased and incomplete because she had not had access to Mbenenge’s affidavit nor had she interviewed Mengo directly to get an interpretation of her texts.
“Because you did not interview her, do you not agree with me that your ability, interpretation and analysis of her intention could be wrong?” Sikhakhane asked.
Vetten said she could not rule that out.
“What I am offering the tribunal, which is for them to take it or leave it, is what I read from this [the conversations] and how it can be interpreted. I am not offering holy wheat here,” she said.
Sikhakhane said the tribunal should look at her report as a general analysis because it was not “objective”.
Vetten indicated to the tribunal she did not read all of Mengo’s cross-examination. She pinned her analysis on the WhatsApp exchanges and Mengo’s evidence-in-chief in which she explained what she meant in her texts.
Sikhakhane asked Vetten whether her analysis would be more complete if she heard what Mengo said when she was challenged about her texts or interviewed her.
Vetten said the substance of her analysis would not change though it would enhance her report.
“It is important to establish from her what she means about things rather than to interpret them sympathetically or not sympathetically from a distance. This is a 42-year-old woman, smart, divorced, has been through life and knows what she means and says what she means. You and I have no reason to doubt it,” Sikhakhane said.
“It would be patronising for all of us in the room to assume she is a child whose actions and words must be interpreted by some other superior male or woman.”
Sikhakhane said Vetten’s work and background focused on victims of sexual harassment, and asked again if she was objective in her analysis.
Vetten said she was not biased in her analysis, adding her experience sitting on sexual harassment case panels exposed her to different types of cases. Not all respondents were convicted.
Sikhakhane also said Vetten was not Xhosa and so she would neither have understood the cultural dynamics in some of the conversations nor accurately interpreted them.
Vetten said culture was not the only thing at play in the case. She said in her analysis she focused on acceptable behaviour in the workplace according to the law.
The tribunal’s chair, retired judge president Bernard Ngoepe, asked Vetten whether anyone had a right to second-guess a woman’s responses, in reference to the debate around the interpretation of Mengo's and Mbenenge’s texts.
Vetten said no-one had a right to second-guess the responses that “a no is a no and a yes is a yes”.
The tribunal also ruled on Tuesday against an application by Mengo’s lawyers to cross-examine Mbenenge and his witnesses. Ngoepe said it was against the rules.
The tribunal continues.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.