Eastern Cape judge president Selby Mbenenge told the judicial conduct tribunal on Tuesday he persisted with sexual advances towards a judge’s secretary because she told him to “earn it”.
Mbenenge took the stand for the second time on Tuesday to defend himself against the complaint by Andiswa Mengo, a junior in the division who reported him for sexual harassment.
Mengo filed the complaint in 2023, accusing Mbenenge of making “unwarranted” sexual advances towards her at work and in WhatsApp conversations.
If found guilty by the tribunal Mbenenge could be impeached and lose his job and all its benefits.
Mbenenge took the panel through the conversation in which he asked Mengo if they could be intimate after she requested to meet him on June 20 2021 in East London.
Mengo declined the request, initially 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”.
Thereafter she responded to his question with “no”, written in bold capital letters, adding that “we should meet but not become intimate”.
Mbenenge said he understood Mengo’s rejection.
“She said no. I understood that, she said let us not be intimate on this occasion,” he said.
After the rejection, Mbenenge said he continued “deep sexual talks” because it was in a playful, flirtatious manner. He said he continued because Mengo had previously told him to “earn it”.
Mengo made the remark after he requested a picture of her.
Mbenenge’s lawyer, Muzi Sikhakhane, asked whether Mbenenge understood Mengo’s “no” meant he should stop flirting all together.
Mbenenge said he understood Mengo rejecting intimacy for that specific day.
Gender-based violence expert Lisa Vetten previously told the tribunal that 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.”
This was a crucial part of the tribunal in answering whether there was consent and whether Mbenenge’s persistent pursuit after Mengo turned him down constituted harassment.
Mbenenge disagreed with Vetten’s analysis.
He said he continued with the sexual advances because in Xhosa culture that is how men pursue women and her “earn it” remark was an invitation for him to continue pursuing her.
“My persistence stemmed from that.”
He said Vetten analysed his persistence from a Eurocentric perspective to view it as harassment, but “it is a perspective that does not consider my culture”.
On Monday Mbenenge criticised the work of the evidence leader, Scheepers, lamenting she did not follow thorough processes to attain evidence.
Scheepers, before starting with cross examination on Tuesday, said she would address Mbenenge’s accusations against her during arguments.
“You spent a lot of time attacking me and the processes followed.”
Scheepers said she followed the law during the investigations dismissing that she did not do her job properly.
“Your understanding of the role of the evidence leader is incorrect as a matter of law.”
Scheepers will continue to cross-examine Mbenenge on Wednesday.
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