22 January 2025
The Judicial Conduct Tribunal into a complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge (above) continued on Wednesday. Photo: Office of the Chief Justice / N Mabusela.
Eastern Cape Judge President Selby Mbenenge denies sending a picture of his penis or any pictures of male “private parts” to judges’ secretary Andiswa Mengo. This was stated by his advocate, Muzi Sikhakhane SC, at the Judicial Conduct Tribunal probing allegations of sexual harassment against the judge.
On Wednesday, Sikhakhane continued with his cross-examination of Mengo, who has testified that the Judge President sexually harassed her between 2021 and 2022 through multiple suggestive messages via WhatsApp, inappropriate comments and gestures regarding her appearance at work, and an incident in his chambers when he asked her to suck his penis.
At one stage during her evidence, she testified that he had sent her a picture of his penis “with hair the same colour as that on his head”. Sikhakhane described this as “body shaming” during his cross-examination.
He referred to an image, described as K8 in the documents before the tribunal, which she had claimed was a picture of “private parts”, sent to her by the judge during a WhatsApp exchange one evening.
It later transpired that this was not the “body shaming” image Sikhakhane had referred to but another picture Mengo claimed he had sent her of “a” private part, rather than “his” private part.
Nonetheless, Sikhakhane said, it was this picture and the allegations that he had sent her pictures of his private parts that had “embarrassed” him for “months and years” and it was the “most shocking” of the allegations.
“It is the crux of what has been circulating and my client being insulted about. It’s why we are here. We need the truth for both you and the respondent to move on with your lives,” he said, noting that the screenshot picture was time stamped in the morning, while Mengo claimed it had been sent to her during a WhatsApp exchange at about ten at night.
“You will agree with me that this picture has tarnished his reputation and probably broke his family,” Sikhakhane said.
“It is this picture in which last week you bordered on body shaming my client when you described it.”
Mengo clarified that she had been referring to another picture, which she alleged Mbenenge had sent her, of his private parts.
Sikhakhane said, “We are getting there”, but agreed that she had in fact not described the picture in question during her evidence.
He said Mbenenge denied sending either of the pictures.
He asked how she knew it was Mbenenge’s private part and had she seen it.
She said she hadn’t but questioned where he would have got a picture of someone else’s.
She later conceded that it was “just an assumption”.
Regarding the time discrepancy, Mengo initially claimed the image was just out of order “chronologically”, but she eventually conceded that it could not have been sent on the evening she had claimed.
This, Sikhakhane cautioned her, meant she had lied under oath.
He said evidence would be led by experts who would say the picture could not be found on her phone or on Mbenenge’s phone.
But Mengo still insisted that he had sent it and disputed suggestions to the contrary.
She indicated that while the experts had not found anything on her phone “it will become evident in talks I had with one of my colleagues”.
But Sikhakhane persisted, and pointed out a discrepancy in the evidence regarding the date of the conversation she alleged had taken place when the picture was sent to her briefly before being deleted.
Referring to the statement she made, on which the Judicial Conduct Committee had recommended the establishment of the tribunal, he said, “First, you do not reflect the sexual messages from yourself; then, you do not reflect the messages which could be interpreted as you being amused by the conversation; and you do not reflect where you expressly stop the respondent from conversing with you.”
She answered yes to all three statements.
He continued to suggest to Mengo that she had been “selective” in her sexual harassment complaint, deliberately leaving out her own “salacious and sleazy” messages and responses to him.
He also suggested that there was no real power dynamic, because Judge Mbenenge or any judge, while powerful, could not “fire” a secretary because they were employed by the Office of the Chief Justice.
He suggested the more sexual the conversations got, “the more you engaged with him”.
On Tuesday at the start of cross-examination, the three-person panel chaired by Judge Bernard Ngoepe was told that the relationship between them was merely “consensual flirtation”.
Mengo has testified that the alleged harassment “broke” her and made her feel naked. She said she did not tell anyone, because she was scared and her responses to Mbenenge were just to “please” him, because he did not take no for an answer.
But Sikhakhane said she had never explicitly said “no” to him and her responses – with laughing emojis and stickers of “laughing ladies” – had been misleading and not a reflection of the “disgust” she alleged she felt at his advances.
The hearing is set to continue until Friday.