Eastern Cape judge president Selby Mbenenge struggled to explain to the judicial conduct tribunal on Wednesday what a deleted message he sent to a judge’s secretary entailed that she contends was a picture of his private parts.
Mbenenge took the stand at the judicial conduct tribunal on Wednesday for cross-examination by evidence leader advocate Salome Scheepers.
The tribunal is investigating a complaint of sexual harassment made by judges’ secretary Andiswa Mengo.
She accuses the judge president of sexually harassing her in their engagements on WhatsApp from June 2021 to 2022 and physically.
Mengo throughout the tribunal has insisted the judge president sent her a picture of male private parts multiple times but deleted it. He also deleted their messages and encouraged her to do the same.
Mbenenge, however, denied the allegation and told the tribunal he opened a case of defamation against Mengo.
Scheepers took Mbenenge through a conversation he had with Mengo on June 20 2021.
Mbenenge on the day asked Mengo whether they could be intimate. She said no.
After Mbenenge stopped “persuasion and negotiation” on the matter, he sent her two messages, which were subsequently deleted, to which Mengo replied saying, “Jeso” (Jesus).
She told the tribunal one of the deleted messages was a picture of a male private part.
Responding to her “Jesus” comment, Mbenenge said: “Why put it this way? Looks delicious?”
Thereafter he sent her a text saying “yours please”.
Scheepers asked Mbenenge what he sent to Mengo.
“I can only speculate. Based on what I am seeing here, I could have sent something similar to what I previously sent. I do not want to say I remember distinctly what I sent,” Mbenenge said.
“When I say ‘why put it this way, it looks delicious’ it is because it could have been a picture of a couple that was engaging [in] cuddling or a sensual picture. But not my private part,” he said.
When asked about what he meant by “yours please”, he said: “‘Yours please’, is ‘send your picture of what you would’.
“All I can say is that I sent something that I looked [regarded] as being juicy. When I said ‘yours please’, I was saying ‘your picture’ within the context of the conversation.”
Mbenenge challenged Mengo’s evidence before the tribunal. He said a screenshot taken by Mengo of the explicit image could not be traced on the chats and had a different time.
He said no expert was able to confirm that it came from their chats.
He argued there were several inconsistencies in her evidence and that she was not forthcoming about her “sexual” conduct in her complaint against him.
Scheepers asked Mbenenge why he did not stop the sexual talk after Mengo rejected the request.
Mbenenge said he understood Mengo’s “no” to be “fact specific” only to his question on whether they could be intimate.
In some of their chats Mengo went silent for hours, not responding to Mbenenge, and Scheepers asked whether the judge could not pick up there could be discomfort.
Mbenenge said that, in the context of their chats, hours of silence did not mean there was no consent, or the sexual talks were unwanted.
Scheepers on Tuesday put it to Mbenenge that he was expected to always act according to clause 5 of the judicial code of conduct that reads: “A judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office. All activities of a judge must be compatible with the status of the judicial office.”
Mbenenge said the clause “had nothing to do with the proceedings”.
Scheepers further read clause 7, which deals with judges having to dissociate themselves from sexist conduct.
Scheepers will continue cross-examining Mbenenge on Thursday.
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