The woman who accused Eastern Cape judge president Selby Mbenenge of sexual harassment has been labelled a liar by the tribunal handling her complaint — a stinging credibility finding experts say will make it difficult for her to take the case further.
Mbenenge has been cleared of sexual harassment and gross misconduct by the Judicial Service Commission (JSC). While the JSC’s 169-page report has not yet been officially released, the Sunday Times has seen it.
A key finding in the report, which comes after months of high-profile hearings, is that court secretary Andiswa Mengo omitted him from her original complaint flirtatious and sexually suggestive messages she herself sent to the judge president.
What is more, an alleged in-person incident at the courthouse involving inappropriate behaviour on the part of Mbenenge could not be proved. Those findings, the tribunal said, undermined her claim that she was an unwilling participant in the exchanges.
The ruling saves Mbenenge from impeachment and clears the way for his return to the bench on Monday — after his having spent nearly two years on special leave.
This case has highlighted the institutionalised patriarchy within our judicial system
— Prof Rachel Jewkes, gender-based violence researcher
But the findings have sparked a fierce backlash from activists and legal experts, who say the outcome sends a troubling signal about how the intersection of power, gender and workplace conduct is understood at the highest levels of the judiciary.
“This case has highlighted the institutionalised patriarchy within our judicial system and the entitlement of men, including in some of the highest offices of the land, to treat women colleagues as worthy sexual conquests,” said Prof Rachel Jewkes, a leading researcher on violence against women.
“We will never realise our constitutional right to gender equality and a life free from violence while these travesties continue.”
The Women’s Legal Centre (WLC), which represented Mengo, said it was still processing the “deeply disappointing language used in parts of the report”.
“We are currently supporting our client, who requires time to process the outcome. We are awaiting her instructions before taking further steps,” it said.
But the WLC welcomed the finding that Mbenenge was guilty of misconduct for engaging in inappropriate workplace behaviour, saying it confirmed Mengo’s complaint had merit, and that the actions she had complained of were “unacceptable and improper”.
The WLC said it would make further submissions to the JSC, and that Mengo retained her right of recourse to institute further legal action, including a review of the JSC’s findings.
“These options are actively under consideration.”
The judge will be back at work on Monday. This is an exoneration and the closing of a chapter
— Thabo Kwinana, Mbenenge’s lawyer
Mbenenge’s lawyer, Thabo Kwinana, said the judge president welcomed the report “with elation”.
“The judge will be back at work on Monday. This is an exoneration and the closing of a chapter,” he said.
Mbenenge was hauled before the JSC after Mengo accused him of sexual harassment, based largely on a series of WhatsApp messages and allegations of inappropriate workplace conduct. She testified that the exchanges unfolded in the context of a power imbalance that made it difficult for her to refuse his advances. Mbenenge countered that the interactions were consensual and amounted to reciprocal flirtation.
The JSC ultimately rejected the harassment claim, finding no proof of overt or covert coercion. It did, however, rule that Mbenenge committed lesser misconduct by initiating and maintaining a “flirtatious relationship” with a subordinate during work hours — a breach of the judicial code of conduct.
The blow to Mengo’s credibility landed early in the report. A forensic expert recovered previously omitted messages from Mengo’s phone, including flirtatious and sexually suggestive texts she had sent to Mbenenge but left out of her formal statements on three occasions. Under cross-examination, she acknowledged sending some of the “salacious” messages. The JSC said the omissions raised serious concerns about her reliability as a witness.
Mbenenge also produced vehicle-tracker reports to rebut an allegation he had made an inappropriate in-person gesture towards Mengo at the courthouse. The data showed he had left the building at noon on the day in question, leading the JSC to conclude there was no proof the incident had occurred.
While the JSC acknowledged the relevance of power dynamics in senior–junior workplace relationships, it held that abuse of power could not be presumed from hierarchy alone. It found there was insufficient evidence to support a conclusion of sexual harassment or gross misconduct.
The most jaw-dropping moment came when, questioned about the salacious subtext of a message, Mbenenge flatly insisted that a banana emoji he’d sent Mengo literally referred to an actual banana — a claim that drew raised eyebrows
The WhatsApp messages between Mengo and Mbenenge were sent in June and July 2021. They were often flirtatious and at times sexually suggestive. Mengo argued the communications were unwelcome and took place in a professional environment where Mbenenge, as head of the division, held significant power over her. She said her responses should not be read as consent but rather attempts to navigate the vulnerable workplace position she found herself in.
The hearing veered into the digital gutter when the JSC examined the now-infamous flirty exchanges — with an expert witness summoned to testify on the implied meaning of emojis. The most jaw-dropping moment came when, questioned about the salacious subtext of a message, Mbenenge flatly insisted that a banana emoji he’d sent Mengo literally referred to an actual banana — a claim that drew raised eyebrows.
Mbenenge insisted the exchanges were mutual. He denied using his authority to pressure or coerce Mengo, and pointed to the tone and content of her replies as evidence the interaction was welcomed.
Judges Matter’s Alison Tilley said the tribunal’s credibility findings cast a shadow over any next steps Mengo might take. “When there are credibility findings, it’s difficult to do anything further,” Tilley said.
She explained that the report now had to go back to what is informally known as the “small JSC” — a subcommittee that will decide on the appropriate sanction for misconduct that does not amount to grounds for removal from office.
“Only lawyers get to decide this issue. That is where the report will be considered, and they will then make a finding.”
The JSC’s options include a formal reprimand or other disciplinary measures, but not a referral to parliament for Mbenenge’s impeachment.
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