Eastern Cape judge president Selby Mbenenge’s version before a judicial conduct tribunal investigating a complaint of sexual harassment against him was “riddled with improbabilities, evasions and contradictions”, evidence leader Salome Scheepers said on Tuesday.
Scheepers was giving her closing argument in the first ever complaint of sexual harassment against a sitting judge in South Africa. At the end of her address she asked the tribunal to find Mbenenge guilty of gross misconduct, saying the allegations struck at the heart of the “principle of equality in the workplace”.
If the tribunal finds Mbenenge guilty and the Judicial Service Commission agrees, Mbenenge could face impeachment.
Scheepers said the version of the complainant, judge’s secretary Andiswa Mengo, was corroborated by the WhatsApp messages put before the tribunal. These showed that Mbenenge initiated the majority of sexually charged conversations between them, that he ignored her attempts to disengage and that he sent unsolicited sexual images. Her evidence was also supported by several witnesses, argued Scheepers.
Mbenenge’s evidence on the other hand was contradictory and improbable, she argued. “There is no evidence here of mutuality, no evidence of reciprocal affection.”
However, Mbenenge’s counsel, Muzi Sikhakhane SC, argued there was not “one iota” of evidence to back up the complaint.
Sikhakhane argued there were three legs to the complaint: the series of WhatsApp exchanges between the two; several disputed images (these were never publicly displayed), which Mengo claimed had been sent to her by Mbenenge, including a picture of his private parts; and an alleged incident in his chambers in which she claimed he had pointed to a bulge in his pants asking her if she could see what she did to him; and then whether she wanted to “suck it”.
Sikhakhane said there was no evidence before the commission that the chambers incident had happened nor that the disputed images had been sent by Mbenenge.
The commission was being asked to make findings “on conjecture”, said Sikhakhane. This was a “dangerous path”, he warned.
However, Scheepers argued that Mengo had testified that they had — this was evidence, she argued. While Mbenenge had contradicted her, none of the evidence from any of the other witnesses rebutted Mengo, she argued.
Counsel for Mengo, Nasreen Rajab-Budlender SC, argued that even if the tribunal was not comfortable to make findings on the incident in chambers or the disputed images, it didn’t matter. On Mbenenge’s own version — on the facts he admitted to — the judge president was guilty of sexual harassment, she argued.
“On the judge president’s own version, he admitted to having badgered her and persisted in his attempt to get her to send him photographs, to engage in sexual conversations and to be intimate with him,” she said.
She said she would ask the tribunal to ask itself whether the conduct Mbenenge himself admitted, “in circumstances where he’s a leader of the judiciary”, was conduct in line with what was expected of the judiciary.
She said Mengo had testified that she did not want to engage in a romantic relationship with Mbenenge — “but she felt compelled to respond his messages because of their relative positions.
“She testified that the conduct was unwanted, that it was persistent, that it was of a sexual nature.”
Setting out the definition of sexual harassment, Rajab-Budlender argued Mbenenge had sexually harassed Meno. She said she had counted 13 instances in the text exchanges where Mengo had said no — “either specifically using the word ‘no’ or using words such as ‘it is impossible’ when asked whether she would melt by the judge president [and] various other incidents”.
Scheepers argued that where Mengo had not directly said no, or what “may superficially appear to be consensual behaviour” was in fact “the product of fear, intimidation or pressure arising from a severe power imbalance”.
Both Scheepers and Rajab-Budlender argued that the power imbalance between the two was essential to understanding sexual harassment and the WhatsApp exchanges.
Scheepers pointed to the evidence of gender expert Lisa Vetten and argued that some of Mengo’s responses — not always saying no directly but attempting to deflect the judge president’s advances — were “entirely typical” of someone “attempting to preserve her safety, dignity and livelihood within a profoundly unequal relationship” in the workplace.
But Sikhakhane said a crucial element of the definition of sexual harassment was that Mbenenge’s advances were unwelcome. Yet an objective analysis of the exchanges showed that “the entire conversation, the general tone of the conversation, the content of the conversation reveal two willing adults”.
He referred to specific examples where he said Mengo had willingly participated in the exchanges. The claims that she had rebuffed him were “a creative reconstruction of the conversation”.
“The factor of unwantedness, if there is such a word, is absent. It’s absent, it’s concocted, reinterpreted,” he said. Persistence, on its own, did not constitute sexual harassment. It had to be unwelcome, he said. And, while there was an unequal power balance between Mbenenge and Mengo, it was only if that power was abused that the conduct became unlawful.
It was not the tribunal’s mandate “to determine how flirting should be done”.
“Whether [Mbenenge] does it elegantly or inelegantly, is a matter about which reasonable people can differ,” Sikhakhane said. “If you are called upon to decide that flirting is dishonourable, well, we plead guilty,” he said.
Chairperson of the tribunal, retired Gauteng judge president Bernard Ngoepe, said the case would be decided on the facts and the law.
He said what was happened in “the court of public opinion” would have no impact on the tribunal. It would take some time to deliver its decision, he said.
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