The evidence leader on Thursday concluded her cross examination of Eastern Cape judge president Selby Mbenenge at the judicial conduct tribunal which is investigating a complaint of sexual harassment against him.
Mbenenge was on the stand from Monday until Thursday testifying about the sexual harassment complaint made against him by judges’ secretary Andiswa Mengo.
She accused the judge president of sexually harassing her in their engagements on WhatsApp from June 2021 to 2022, and physically as well.
If found guilty of gross misconduct, Mbenenge could be impeached, lose his job and all the benefits that go with it.
The judge throughout the tribunal argued that communications between him and Mengo were “consensual and flirtatious”.
In her cross examination, evidence leader advocate Salome Scheepers on Thursday continued to quiz Mbenenge on claims he asked Mengo for oral sex in his chambers at the Mthatha high court in November 2022.
Mengo, during cross-examination earlier said she could not remember the date of the alleged incident but said it was either November 14 or 15 2022.
There was no footage before the tribunal to support her claim.
“I do not know how many times I must say this. It is not correct. It is not true. The persistence with this in my view can only be malicious,” Mbenenge said.
When Scheepers put it to him that because there was no full day footage of November 14 2022 and that it could not be dismissed the incident happened, Mbenenge denied the proposition.
“The version of the complainant is denied. We can repeat this 100 times, it is not going to change. All I am going to say is, this is becoming highly malicious.”
Mengo previously told the tribunal a security guard at the court informed her Mbenenge ordered footage of the said day to be wiped off.
Mbenenge lambasted Scheepers’ approach in the tribunal’s investigation, lamenting Mengo's claim was not sufficiently probed and canvassed.
He said the evidence leader should have interviewed security staff to test the claim “but even that was not done”.
Scheepers said she would address Mbenenge’s accusations against her during arguments.
During the cross examination on Wednesday, Mbenenge denied he asked Mengo to send an explicit picture of herself when he told her to “khulula umntla — take off the top part”.
He said he was asking her to take off her jacket because “it was obstructive, it does give me a full perspective of how she looked”.
When pressed on what more he wanted to see, Mbenenge said he was not “denuding” her but wanted to see “how she is made up”.
The requests for pictures were made on the first day of their chats. Scheepers put it to Mbenenge that he asked for her pictures on that day 11 times and that could amount to harassment because Mengo did not adhere to the request.
Mbenenge disagreed saying Mengo did send him a picture but was fully clothed. He said there was no sexual harassment.
The judge also denied sending Mengo a picture of a male private part and told the tribunal on Thursday the allegation was “lies”. A picture provided by Mengo to the tribunal could not be traced on their chats.
Mbenenge, however, conceded he sent her short clips or pictures of intimate couples.
The judge also dismissed the testimony of gender-based violence expert Lisa Vetten, who testified Mbenenge did not take no for an answer when Mengo rejected his request for intimacy on June 20 2021.
He said he understood the “no” but continued with sexual talks because the rejection did not mean the “flirtatious relationship” came to an end.
The main question before the tribunal, which is the first of its kind, is whether there was consent between Mengo and Mbenenge. The judge argued before the tribunal there was no proof the conversations were unwanted.
The tribunal, comprising of retired judge president Bernard Ngoepe, advocate Gift Mashaba and judge Cynthia Pretorius, will reconvene on October 21 for oral arguments before it delivers a decision.
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