Rollercoaster of tawdry sex claims

After two gruelling weeks, a judicial conduct tribunal investigating sexual harassment allegations against Eastern Cape judge president Selby Mbenenge has heard the evidence and cross-examination of only one witness — the complainant, judges’ secretary Andiswa Mengo. But her evidence alone was a rollercoaster of dramatic and shocking allegations and counter-allegations.

Whichever version prevails in the end, hers (a judge president abusing his powerful position to sexually harass, over the course of more than a year, a junior staffer) or his (an admittedly salacious, but entirely consensual, private flirtation), neither are stories one expects to hear about any judge, let alone a leader in the judiciary.

Sex positions, brinjal and peach emojis, messages about “long Tom”, “big nto” and “half-insertion”. That these exchanges could pass, even consensually, between a judge president and a much younger junior staffer strikes at something fundamental to our conception of what a judge is — venerable, wise and ethical.

That these exchanges could pass, even consensually, between a judge president and a much younger junior staffer strikes at something fundamental to our conception of what a judge is

Mbenenge’s counsel, Muzi Sikhakhane SC, concluded his cross-examination on Friday by summarising Mbenenge’s version. The judge president denied some of the photos and videos Mengo claimed he sent her. But he admitted there were “conversations” that “did get sexual”. The conversations were not unwelcome, however. Mbenenge “realises that the conversation may be embarrassing, because it was private, but what fundamentally he will deny is that he abused his power in those conversations”, said Sikhakhane. If Mengo was uncomfortable with their conversation, this “was not clearly communicated to him”.

“He acknowledges that it is possible that conversations of this nature, that are private, may be private sin. But he will deny that it constituted harassing you. And he will say that, of course, while the two of you may have to answer to your Maker about that, it is harassment that is the case he has to deal with in front of the panel.”

There is a question about whether sexual harassment is the only case Mbenenge has to answer. The tribunal’s terms of reference say it must investigate “whether or not, as result of the conduct referred to in Ms Mengo’s complaint, Judge President Mbenenge is guilty of gross misconduct”. This could allow the tribunal to look at Mbenenge’s conduct more broadly.

In her opening address, evidence leader Salome Scheepers suggested as much, saying: “Judges are held to a higher standard than ordinary employees – therefore the question … is whether … the JP’s conduct – even if only that conduct to which he concedes – amounts to a misconduct.” Yet the Judicial Conduct Committee defined the task of the tribunal narrowly: “It is common cause that the judge president made sexual advances … the question is whether those were unwanted”.

This could be the subject of an argument later on down the road. 

But we are nowhere near that point yet. On Friday, Mengo was emphatic that she was sexually harassed. When Sikhakhane suggested the alleged incident in Mbenenge’s chambers — where she claimed that he had pointed to a bulge in his trousers, saying “do you see the effect that you have on me”, asking her whether she didn’t want to suck it — never happened, she replied: “He is lying.”

Mbenenge has yet to testify and be cross-examined. Much may change after this as it is his conduct, not Mengo’s, that is being investigated.

But by Friday, his counsel, Sikhakhane, had sought to undermine Mengo’s credibility and her assertion — crucial for a sexual harassment claim to succeed — that Mbenenge’s advances were unwanted.

Over Thursday afternoon and Friday morning, he grilled her about the striking similarities in two versions of her complaint to the judicial conduct committee. She said the first one had been typed by then Judicial Service Commission secretary Kutlwano Moretlwe while she had sat beside her speaking, and that she had written the later one, unassisted, without having a copy of the earlier one.

But as Sikhakhane took her through specific lines in the two versions, Mengo was constrained, over and over again, to agree that parts of the two versions were “absolutely identical” — including identical grammatical errors, missing words and even a misplaced full stop. Sikhakhane suggested “only a person working on a soft copy would make the same mistake about a full stop and the same grammatical error”. He asked repeatedly whether Mengo was sticking to her story and each time she insisted she was. When Mengo’s own counsel, Nasreen Rajab-Budlender SC, questioned her she asked only whether the initial complaint was signed and dated. It wasn’t, said Mengo.

Moretlwe is expected to give evidence at some point.

Sikhakhane had also earlier gone through Mengo’s WhatsApp messages with her, pointing her to those she had not included in her JSC complaint, suggesting she omitted the ones that showed her to be participating in the sexual conversation. The list of messages she omitted was long. It included her saying “three times” he was cute and saying “semandi” — it’s nice — in response to a collage of sexual positions. 

“You elected to omit certain things or communications from you. In fact, it’s quite important what you do not write in your complaint,” he said, suggesting her complaint was misleading.

While she had earlier testified that her responses to Mbenenge were due to his powerful position, Sikhakhane suggested that her relationship with the judge president was one in which power could “shift” and that she was not, in terms of "the organogram”, employed by him.

When it came to Scheepers and Rajab-Budlender’s second chance to ask questions, Scheepers asked the question Sikhakhane did not: why had she not included all her own messages in her complaint? She said she “only took parts that were relevant at the time”.

Rajab-Budlender returned to the issue of the power relationship between the two. Mengo said it was not true Mbenenge had no power to affect her working conditions. He “can do anything at work, he is someone one would be afraid of. And he would do it in such a way that he makes you feel it when he is present,” she said.

The tribunal will reconvene in May.