A judicial conduct tribunal into sexual harassment allegations against Eastern Cape judge president Selby Mbenenge is due to begin tomorrow — the first time a judge has faced potential impeachment for sexual misconduct.
The tribunal will be a test of how the judiciary treats allegations of sexual harassment within its ranks.
There’s criticism Mbenenge’s case has been treated differently — he was not suspended as were other judges who faced tribunals, but placed on “special leave” for more than a year.
In December, the tribunal’s president, retired Gauteng judge president Bernard Ngoepe, ruled the tribunal would be partially public and partially behind closed doors because the evidence had the potential to bring “irreparable harm” to the judiciary. As Mbenenge was one of its leaders, “damage to him would extend to the judiciary”, said Ngoepe in his ruling.
The allegations, made by Andiswa Mengo, then a judge’s secretary in the Eastern Cape division of the high court, relate to a series of WhatsApp exchanges between the two, and an alleged encounter in Mbenenge’s chambers between June 2021 and November 2022.
Mbenenge has admitted to some of the WhatsApp messages, but claims they were consensual — “playful, jovial and flirtatious”, he said — according to a 2023 Judicial Conduct Committee (JCC) decision that the Sunday Times previously reported.
According to the JCC, Mengo said Mbenenge’s attention was unwanted and made her uncomfortable. Further, it said the encounter in his chambers was denied by Mbenenge. The JCC said it was “common cause” that Mbenenge “made sexual advances” to Mengo. The question was whether those were unwanted, “and, if so, whether the judge president knew, or ought to reasonably have known, that they were unwanted”.
The entire evidence must be considered, said the JCC.
Also important were the power dynamics and context, said the JCC. “The judge president is the head of the court of the Eastern Cape division and [Mengo] was a judge’s secretary — a junior position in relation to the judge president’s. [Mengo] submits that as a junior member in this context she had to be mindful of how she navigated the workplace, and rebuffed the judge president’s advances in as polite manner as possible.”
In his ruling, Ngoepe said evidence on those messages Mbenenge “does not deny” would be open to the public, but evidence on those that are disputed would be in camera. The Judicial Service Commission Act gives the president of a tribunal the discretion to decide whether a tribunal should be open, with the default position being private.
Even though the allegations have been previously reported, “one does not know how much the public believe what is reported in the media”, said Ngoepe. “But when they actually hear the evidence from the horse’s mouth, the impact should be different,” he said.
The 'contours of sexual harassment are complex', said the JCC. But the extent to which the public will be privy to the tribunal’s investigation of this 'complex' issue remains to be seen
The Sunday Times requested Mbenenge’s submissions to the tribunal to ascertain what he was disputing, but the request was refused. However, the JCC’s decision referred to sexually explicit pictures and a video, which Mengo said Mbenenge sent to her, which he denied. The JCC was “not equipped to determine whether certain pictures were downloaded from the internet, as alleged by the judge president or sent from the judge president’s phone, as alleged by [Mengo]”.
This may be something that the tribunal could seek to get to the bottom of through expert evidence. But if it does, it may be done behind closed doors.
Another factual dispute at the time of the JCC decision was whether Mengo had visited Mbenenge’s chambers on the day in question. According to the JCC, Mengo said she tried to obtain CCTV footage to show she had gone to his chambers, but was told the system was no longer working and everything had been wiped out. But Mbenenge relied on an affidavit from the acting deputy judge president of the Mthatha court who said he had watched the CCTV footage over November 14 and 15, 2022, together with a security officer.
He said it showed Mbenenge arriving and leaving his chambers on November 15 carrying a bag, but at no stage did it show Mengo entering his chambers. She did not respond to this allegation, said the JCC.
If this is still an issue in dispute at the tribunal, this evidence may be traversed behind closed doors.
“There are WhatsApp messages and/or pictures relating to some alleged indecent images claimed to have occurred in the respondent’s chambers. These ... are not to be availed to the public, and evidence relating to them will also be in camera,” Ngoepe’s ruling states.
The “contours of sexual harassment are complex”, said the JCC. But the extent to which the public will be privy to the tribunal’s investigation of this “complex” issue remains to be seen.
Ngoepe said the “very purpose” of judicial conduct tribunals was “to protect the image of the judiciary as an institution”. But the proceedings should not be conducted in a way that, whatever the outcome, “damage to the institution would still ensue. This would, surely, be the result if a decision was made to hold the proceedings in public”, he said.
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