As the judicial conduct tribunal this week resumed its investigation into sexual harassment allegations against Eastern Cape judge president Selby Mbenenge, it was his accuser’s conduct, not his, that dominated questions from his legal team.
Mbenenge’s lawyers questioned witnesses at length about what judges' secretary Andiswa Mengo’s emojis meant, what screenshots she had sent, how she had lodged her complaint and what she had told, or not told, colleagues. The judge president’s conduct was mostly left untouched.
This approach was to be expected. Mbenenge is still to give his version and to be cross-examined. More importantly, the judge president’s defence is that while the two had sexual conversations, these were not unwelcome to her. If they were, he was not aware of this. He could not reasonably have been aware — given the way she responded to his attentions. Sexual harassment means unwanted sexual attention, so he did not sexually harass her — so goes his defence.
So, when an expert witness on emojis, Dr Zakeera Docrat, testified that a brinjal and peach emoji sent by Mbenenge, alongside a text about “going the intimate route”, signified a penis and vagina, it was never suggested by Mbenenge’s lawyers that he understood these to mean a fruit or a vegetable. Nor was it suggested that Mbenenge understood an unpeeled banana emoji, in a chat about oral sex, to mean a fruit (Docrat said it meant a “an uncircumcised penis”).
Instead Mbenenge’s counsel, Griffiths Madonsela SC, focused on Mengo’s emojis: what did she mean when she responded — as she did so frequently — with “ROFL” emojis ( a sideways laughing face, with tears coming out of its eyes) and “monkey face” emojis?
Docrat testified that Mengo’s ROFL emojis were a “a digital fingerprint” because she used them so often. They were used, for the most part, as an “automated” or “automatic” response and signified that Mengo was “laughing off” the conversation with Mbenenge — trying to make it lighter or trying to change its direction. The monkey face emojis (a monkey with its hands over its eyes) usually meant embarrassment or shyness. They were not, as Mbenenge understood them, indicative of flirtatiousness. Docrat did, however, say that there were parts of their chats where Mengo was flirting with the judge president, but not the emojis.
In addition to Docrat, five other witnesses gave evidence including a forensic cellphone specialist, colleagues in whom Mengo had confided and a manager to whom she had initially reported the allegations.
A potential boost for Mbenenge’s defence came with the evidence of former Judicial Service Commission official Kutlwano Moretlwe, who testified over Wednesday and Thursday, presenting a starkly contradictory account to Mengo’s about what happened when Mengo first brought her sexual harassment complaint.
Moretlwe was the person who assisted Mengo when she travelled from the Eastern Cape to Gauteng to lay the complaint. She told the tribunal that she sat with Mengo and typed while Mengo told her story.
In January, when the tribunal first got under way, Mengo had testified that she had to redo her complaint because she was told by Moretlwe that her initial one, submitted in December 2022, had been “misplaced”. But then Mbenenge’s counsel, Muzi Sikhkahane SC, produced a letter from the JSC secretariat which said former chief justice Raymond Zondo had been “dissatisfied” with the initial complaint and that Mengo should be asked for another. Back in January, it was unclear what the dissatisfaction was about.
On one aspect, Moretlwe’s evidence corroborated Mengo’s. She said it was “incorrect” that the reason for Zondo’s request was that he was dissatisfied. She had forgotten the complaint had been misplaced, and only remembered much later when she heard Mengo give evidence to the tribunal. The “dissatisfaction” aspect was that Zondo had also asked for the complaint to be in affidavit form and for cross-references to be included — between the screenshot annexures and the body of the complaint.
But in another respect, her evidence and Mengo’s were “mutually destructive”, Sikhakhane suggested on Thursday. “It’s either you are not telling the tribunal the truth or Ms Mengo did not tell the tribunal the truth,” he said.
Where their versions diverged was about whether Mengo had her own laptop when she travelled to Johannesburg — and therefore whether she had an electronic version of her original complaint when she rewrote it.
In January, Sikhakhane questioned Mengo, at length, about her claim that she had rewritten the complaint from scratch — without having obtained a copy from Moretlwe. Mbenenge’s team had obtained an unsigned copy of the initial complaint from the JSC secretariat. In a lengthy and devastating exercise, Sikhakhane asked Mengo to read certain sentences from both versions — the initial one lodged in December and the one before the tribunal, lodged in January.
Whether Mengo worked from an earlier version of her complaint seems an innocuous point. But any dent to Mengo’s credibility would boost Mbenenge’s defence — on the basis that if she lies about one thing, she could be lying about another
In each instance the sentences were “absolutely identical”, despite an almost one-month difference between the writing of the two. By the time the hearing adjourned for the day, they had identified eight instances of, word-for-word, identical statements — even a misplaced fullstop in the one was misplaced the same way in the second.
Mengo was adamant she did not have an electronic version but could not explain the similarities. Sikhakhane suggested she was not telling the truth and would argue she was “less than candid on this issue”.
On Thursday Moretlwe said Mengo must have had an electronic version. She testified that as the two of them were working on the complaint, it began to get late. So they moved to Mengo’s hotel room to continue. At about 9pm, Moretlwe needed to leave but they had not finished. So she gave the typed version of what they had worked on to Mengo on a memory stick to transfer to her own laptop — so that Mengo could “finalise” the complaint on her own laptop, which she had brought with her to Johannesburg.
Mengo’s counsel, Nasreen Rajab-Budlender SC, said Mengo still stuck to her version. She said Mengo had not brought her laptop to Johannesburg. Instead, Mengo’s version was that the two had worked together, using Moretlwe’s laptop, until around midnight. Mengo never had an electronic version of the complaint, according to Mengo. Moretlwe disputed this.
This factual dispute is a peculiar one because it is unclear, at least at this stage, what Mengo would have to gain from lying about this particular issue (or Moretlwe for that matter). Whether Mengo worked from an earlier version of her complaint seems an innocuous point. But any dent to Mengo’s credibility would boost Mbenenge’s defence — on the basis that if she lies about one thing, she could be lying about another.
Rajab-Budlender suggested on Thursday that it was Moretlwe’s evidence that was “concerning”. “I will argue that it should not be accepted — particularly as it relates to Ms Mengo,” she said.
The tribunal will continue on Monday.
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