Judges’ secretary Andiswa Mengo said “no” to Eastern Cape judge president Selby Mbenenge’s sexual advances about 13 times, but he did not stop and therefore he should be found guilty of sexual harassment, advocate Nasreen Rajab-Budlender argued on Tuesday.
Rajab-Budlender, representing Mengo, made her closing arguments in the first sexual harassment complaint case against a sitting judge before the Judicial Conduct Tribunal, chaired by former Gauteng judge president Bernard Ngoepe and fellow panellist members judge Cynthia Pretorius and advocate Gift Mashaba.
Mengo accuses the judge president of sexually harassing her in their engagements on WhatsApp from June 2021 to 2022 and physically.
A crucial question for the tribunal to answer is whether Mbenenge sexually harassed Mengo by making unwanted sexual advances towards her and therefore committed gross misconduct as a judge, which could lead to him losing his job.
Rajab-Budlender argued Mbenenge sexually harassed Mengo from the first day he spoke to her in June 2021 by persistently asking for pictures that “exposed her structure” in the first hour of their WhatsApp conversation.
That Mengo did not send him the picture by initially saying she was at the gym and later saying all her images had been wiped from her phone should have indicated that his advances were unwanted.
“The complainant testified she did not want to engage in either romantic or sexual conversations with the judge president but felt compelled to respond to his messages because of their relative positions. She testified that the conduct was unwanted, persistent and of a sexual nature. She testified she said no on many occasions,” Rajab-Bedlender contended.
“We counted these through the transcript; there were approximately 13 occasions in which the complainant said no, either specifically the word no or using words such as ‘it is impossible’ when asked whether she would ‘melt’ by the judge president. In different ways, this complainant said ‘no’ many times.”
Rajab-Budlender said Mbenenge, in his own version, admitted to persisting in his attempts to get Mengo to engage in sexual conversations with him but pinned it on cultural practice, which “permitted him”.
She argued his version painted “the very definition of sexual harassment”.
Persistence, despite rebuff, showed he was not “taking no for an answer” and exposed power dynamics between a judge president and a junior secretary, she said.
When asked by Ngoepe whether she accepts that power dynamics in “matters of the heart” shift and are not always the same, she argued that the conversations between Mengo and Mbenenge were not of romantic pursuit but rather sexual advances.
She accepted that women are not always powerless in relationships, but argued that in this case, Mengo was.
“Nothing in the conversation demonstrates a rebuff, nothing whatsoever,” advocate Muzi Sikhakhane, representing Mbenenge, said in his rebuttal.
He argued the complaint did not constitute sexual harassment because Mengo “consented and participated” in the sexual conversations and did not reject Mbenenge’s advances.
No evidence existed to show the conversations were unwanted and therefore a sexual harassment case was not met, Sikhakhane told the tribunal, adding that Mbenenge’s persistence should be considered in the context that there was no rebuff.
Should the tribunal find Mengo did not meet the requirement of a case of sexual harassment, the tribunal could not take the complaint further and judge Mbenenge’s conduct, he argued.
“This is [a] classic case and … it is an important case because I agree the very essence of the definition of unwantedness is absent. It is concocted, reinterpreted, but that reinterpretation itself undermines the participant in the conversation.”
Sikhakhane disagreed with the analysis of gender-based violence expert Lisa Vetten, who testified at the tribunal that an analysis of Mengo’s engagements showed that she did not want to have sexual conversations with Mbenenge, though she entertained him.
Ngoepe had asked Vetten whether the tribunal should not take the interactions between the two for exactly what was meant because a woman’s “no is a no, and a woman’s yes is a yes”, Vetten agreed.
Sikhakhane said that while some people might not approve of Mbenenge’s “courting”, his actions did not constitute abuse or harassment.
“We are told relationships in the workplace are not a problem; it is the manner in which he [Mbenenge] engages. This is a murky area about which most men and women differ.”
Evidence leader Salome Scheepers said a single ‘no’ from Mengo to Mbenenge’s sexual advances should have been enough to deter him, but it did not, therefore he should be found guilty of sexual harassment.
In one of their exchanges Mbenenge directly asked Mengo whether they could have sex. She said no after quoting a Bible verse.
Scheepers argued that ‘no’ should have been enough to show Mbenenge that Mengo was not interested, but he continued with his sexual advances. She argued that because of it, he should be found guilty of sexual harassment.
She said Mengo was not a perfect victim in that she too participated in sexual conversations at the time. She said her conduct was influenced by an imbalance in power relations.
The tribunal is expected to issue a report of its findings after the closing arguments are made.
