Judge President accused of sexual harassment faces inquiry

Eastern Cape High Court Judge President Selby Mbenenge is facing possible impeachment. Archive photo: Oupa Nkosi for Judges Matter (used with permission)

• The inquiry into a sexual harassment complaint against Eastern Cape Judge President Selby Mbenenge started on Monday.
• The evidence leader says even on Judge Mbenenge’s own version, he is guilty of gross misconduct.
• The complainant, a young secretary, gave testimony.
• All evidence will now be heard in public after a Judicial Conduct Tribunal reversed a previous ruling that some evidence would be held in camera.

Eastern Cape High Court Judge President Selby Mbenenge, who is facing possible impeachment for sexually harassing a young secretary, had even on his own version admitted to “gross misconduct”.

This was according to advocate Salomé Scheepers, presenting evidence before the Judicial Conduct Tribunal hearing the case against Mbenenge. She said Mbenenge had acknowledged that he “may have been mistaken” and had apologised for his conduct.

As the head of judiciary in the province, a married man, and a community and church leader, his admissions showed that his conduct had brought the judiciary into disrepute and was in direct conflict with the code of conduct for judges. “It clearly constitutes gross misconduct,” Scheepers submitted.

Scheepers and advocate Nasreen Rajab-Budlender, representing complainant Andiso Mengo on behalf of the Womens Legal Centre, urged the tribunal to evaluate the evidence in the nuanced context of sexual abuse and harassment against women in the workplace and “power dynamics”.

Both said the matter was “unprecedented” as Mbenenge was the first sitting judge and court judge president to be accused of such conduct – a powerful person preying on a junior staff member.

In her opening statement, Scheepers said that Mengo had complained that Mbenenge had sexually harassed her between 2021 and 2022 through multiple suggestive messages via WhatsApp, inappropriate comments and gestures regarding her appearance, and a specific incident which occurred in his chambers.

“He has admitted to engaging with her on social media in a way which was clearly sexual and inappropriate, given his seniority.

“The complaint will establish this was not flirtation. This was unwanted. She tried to make this clear, but he intentionally disregarded her boundaries.

“She will testify that she asked for a meeting with him, but withdrew the request after he reiterated his desire for intimacy”.

Scheepers said among the witnesses who would testify were current serving judges who would give evidence on what they heard or had been told.

However, Tribunal president Bernard Ngoepe was clearly unhappy when advocate Muzi Sikhakhane, acting for Mbenenge, indicated that he wanted former Chief Justice Raymond Zondo to testify.

Sikhakhane said he wanted Zondo to be subpoenaed “because of a letter from another official in that office who states certain facts” which were within Zondo’s knowledge.

Ngoepe said he would have to make a proper case for that, setting out the relevance of his evidence to the issue before the tribunal.

Late last year, the tribunal ruled that its proceedings would be held partly in camera “to protect the interests of the judiciary”.

It ruled that evidence relating to the WhatsApp messages, which Mbenenge did not deny the contents of or that they came from him, would be heard in public and could be broadcast live.

But evidence relating to messages and pictures which he denied came from him or his cellular phone and messages and pictures relating to some indecent incidents alleged to have occurred in his chambers, would be held in camera.

However, at the start of proceedings on Monday, following submissions by Sikhakhane, and after Ngoepe consulted with Chief Justice Mandisa Maya, the in camera ruling was scrapped and the entire proceedings were opened to the public and the media.

Sikhakhane said while his client had initially wanted the proceedings to be closed “preparation had revealed certain things” including possible prejudice to the parties and impracticalities of having to cross examine witnesses twice.

He said it was also not in the interests of the judiciary “if some things are hidden”.

Ngoepe said the initial ruling was to protect the image of the judiciary “but we don’t want to pretend, me and the Chief Justice, that we know the case better than the parties themselves”.

Mengo began testifying on Monday. She said she had been first appointed as a judge’s secretary in 2018 before Mbenenge had been appointed Judge President. She’d had little contact with him until he asked her to handle an on-line court hearing and, shortly thereafter, she had an “incident” with the court manager which she discussed with him.

One day at work, he had seen her child sitting in her office and inquired about the father.

Later that evening, he had started sending her WhatsApp messages, beginning with an apology for asking personal questions about her child.

At some point he raised the question of her age and said her voice was like that of a child.

She said she had humoured him, because he was her “boss”.

But then the tone of the conversation changed when he asked her to send him pictures of herself.

She did not respond.

A minute later he responded with an emoji of eyes.

“It was actually annoying. I realised if I didn’t respond then he would just continue sending me messages,” she said.

She had lied and said her pictures had all been deleted from her phone.

Her evidence continues on Tuesday.

The panel includes retired judge Ngoepe, retired judge Cynthia Pretorius and advocate Gift Mashaba. It has been set down to proceed until 24 January.

Mbenenge, who is now on “special leave”, was appointed as Judge President of the Eastern Cape in November 2017.

In 2023, a Judicial Conduct Committee ruled there was a prima facie case of gross judicial misconduct against him which, if confirmed, could lead to his impeachment. The Judicial Services Commission then appointed the tribunal to hear the matter.

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