21 January 2025
The Judicial Conduct Tribunal into a complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge laid by secretary Andiswa Mengo (above) heard cross examination on Tuesday. Photo: Office of the Chief Justice / N Mabusela.
The sexual WhatsApp exchanges between Eastern Cape Judge President Selby Mbenenge and junior judge’s secretary Andiswa Mengo was “consensual flirtation”, Mbenenge’s advocate Muzi Sikhakhane SC submitted on Tuesday.
Cross examination of Mengo got underway after the Judicial Conduct Tribunal heard evidence from Mengo that the Judge President sexually harassed her between 2021 and 2022 through multiple suggestive messages via WhatsApp, inappropriate comments, gestures regarding her appearance at work, and an incident in his chambers where he asked her to suck his penis.
Much of the evidence was contained in documented screenshots of the WhatsApp exchanges between them.
But Sikhakhane put it to Mengo that there was nothing wrong with “flirtation”, noting that she had also sent him sexually salacious messages.
He said, “I am not calling you a liar yet”, after pointing out that in her complaint she had omitted her own responses.
Had she not been happy with his advances, Sikhakhane said, she should have kept quiet.
“I do understand the difficulty of being rude to a person who is well-respected. But you had the option not to answer him,” he said.
He said Mengo had suggested in her complaint that Mbenenge be punished and “possibly institutionalised”.
In a series of questions, with which Mengo agreed, he said there was nothing wrong with two people flirting and the tribunal did not have to determine if it was morally right for the two of them to send sexual messages to each other.
Sexual harassment had to be unwanted, persistent and demeaning.
He said women who lied about sexual harassment were “no different from the male misogynists” who offended, and they must also face severe condemnation and punishment.
Questioned by Sikhakhane, Mengo said she agreed that “liars” could not be trusted and that she was aware of the seriousness of committing perjury.
“Listen carefully to what I am about to say,” Sikhakhane said. “Having reached this point where we have discussed the seriousness of sexual harassment, the pandemic of it, and how serious it is and how wrong it is for those men who commit the offence, and the women or men who falsely make such claims for ulterior purposes, fabricate evidence, embellish evidence, get influence to lay a charge for ulterior purposes, having listened to yourself, I want to pause here and give you an opportunity: Have you in some way lied, embellished, fabricated during this process or before?
Mengo answered, “No.”
On the issue of her not disclosing her own “salacious” messages in her complaint (which she lodged with the Office of the Chief Justice), Sikhakhane suggested that this was because she was attempting to conceal her own “disgusting” behaviour and to make herself “the good one” and Mbenenge “the bad one”, that she was a “little girl that is scared”.
“I am not calling you a liar yet … It is an attempt to deceive whether you intended it or not.”
He asked why she had not, at some point in her complaint, referred to sections of “the poetry between the two of you” that you wanted “half insertion”, meaning the insertion of the penis half way.
She had also not disclosed that she had said she had no preference for a particular sex position but would like to be surprised.
He said Mengo herself had objectified women “as meat to be marinated” and as “stoves to be warmed”.
“You will agree with me, that without those being disclosed, one does not know that you were reciprocating in the disgusting objectifying messages and omitting those essential parts [of the messages].”
Mengo replied, “Yes.”
Sikhakhane then started going through the message exchanges, already in evidence before the tribunal through Mengo’s evidence in chief.
Mengo has testified that she responded to his advances because he was her boss, a community and church leader, but felt disgusted by them.
Sikhakhane said she had not communicated this to Mbenenge “for whatever reason”.
“Without undermining what you were feeling, would I be correct to say, on the face of it, from an observer, that you did not communicate this discomfort to him.
“There was no way of knowing that you did not approve. In fact, you communicate that you are fine with it,” he asked.
Mengo again replied: “Yes.”
He said, “I do understand the difficulty of being rude to someone who is well-respected, but you are old enough to know that keeping quiet, not responding, would have been better than the opposite. That you had that option.”
Mengo said, “It isn’t easy. But yes.”
Regarding an early morning message request by Mbenenge for a “BJ”, a picture of a “man muffing a woman” and then a message: “Am I wrong”, Sikhakhane said while he understood “power relationships”, he questioned why, as an adult divorced woman, she had expressly answered, “Not at all”.
“Was this not the opportunity to tell him you are wrong?” he asked.
“This is inconsistent with a disgusted person,” he added.
Mengo said she disagreed. But when pressed further, she said, “I have no answer.”
Earlier in the proceedings, Mengo questioned by her own advocate, Nasreen Rajab-Budlender SC (briefed by the Women’s legal Centre), said she had laid the complaint “so that other women would know they can stand on their own and tell their story to the world”.
“It was to tell them to be brave.”
She said she had no reason to lie about what happened.
Asked why she had responded to Mbenenge with sexual comments, she replied, “We are talking about a powerful person. We are talking about someone who is in charge [of the judiciary] of the entire province. It was difficult to say no to him, although I said no, no, no, on numerous occasions.
“More than anything, I was scared of how he was going to treat me at work. And there was no-one who was going to believe me if I conveyed my story.”
Mengo said she had also responded with sexual messages in order to “satisfy him in order for peace at the workplace”.