On the first day that Eastern Cape judge president Selby Mbenenge started chatting to judges secretary Andiswa Mengo via WhatsApp, he asked her for her photos 11 times, suggested evidence leader Salome Scheepers in cross-examination on Wednesday. And, while Mengo tried different strategies to avoid sending him the pictures, “you persisted”, said Scheepers.
In a marathon day of cross-examination, Scheepers questioned Mbenenge at length about the WhatsApp exchanges between the two, which extended over more than a year from 2021 to 2022. While Mengo has said the exchanges were unwanted and amounted to sexual harassment, Mbenenge said their relationship was a mutual flirtation in which they both participated as willing adults.
What Scheepers portrayed as persistence, Mbenenge insisted was “persuasion and negotiation”, saying the tribunal was not there to pass moral judgment on him and the only question it had to answer was whether the exchanges were welcome.
Mbenenge said: “Let’s steer clear of moral issues. So we now know that in terms of the law of South Africa, at the centre of it is whether conduct is welcome or unwelcome in context of sexual harassment. The standard is legal and objective, not based on private morality or religious codes. Whether a person believes in adultery, does not condone it, thinks it’s sinful, or thinks their conduct was not adultery is completely immaterial. Those are moral, theological concerns, not legal ones.”
Mbenenge insisted that he kept his powerful position as judge president out of his relationship with Mengo and that their conversations were “between a man and a woman”.
“But you cannot take away from the fact that you are the JP, everyone knew that,” said Scheepers, adding that Mengo had testified that she did not feel she was in a position to say no directly to Mbenenge because of their unequal positions in the workplace. Mbenenge would not accept this, saying he had no authority over Mengo and their interactions were social in nature.
Clearly she did not want to converse with you further.
— Salome Scheepers, evidence leader
When he requested Mengo “khulula umntla”, Scheepers said Mengo interpreted this to mean that he wanted a topless photo, but Mbenenge said he was asking her to take her jacket off. “I just wanted to appreciate her appearance. Because as far as I was concerned the jacket was obstructive,” he said. Scheepers asked obstructive “of what?” Mbenenge said that when someone wears a jacket, it cannot be seen how they are “structured”.
“So you wanted to see her body?” said Scheepers. “I was not denuding her, I wanted to see how she is made up,” said Mbenenge.
Scheepers suggested that even suggesting such a request “to see the structure of her body, especially in the absence of a personal relationship and in the presence of a professional hierarchy, amounts to sexual harassment”. Mbenenge said he disagreed.
As Scheepers went through the WhatsApp exchanges, she referred to instances where Mengo did not respond to repeated messages from Mbenenge or where she responded by saying she was busy at work.
In one exchange, she said nothing, yet Mbenenge kept asking for her to respond to him, with repeated messages over several hours. “Clearly she did not want to converse with you further,” said Scheepers. “That is not how I understood it,” said Mbenenge. He said when she did eventually respond, she said something that “softens my heart” — that he should sleep well and dream.
Cross-examination continued into the evening with tribunal chairperson, retired Gauteng judge president Bernard Ngoepe, saying they would finish at 10pm. On Tuesday, he said he would not allow the tribunal to drag on like the Senzo Meyiwa trial and was determined to finish this week.
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