The evidence before the Judicial Conduct Tribunal did not rule out the possibility that Eastern Cape judge president Selby Mbenenge had tried to expose his erect penis to judges’ secretary Andiswa Mengo, suggested evidence leader Salome Scheepers during cross-examination on Thursday. “It could have happened,” she said.
“It did not happen,” said Mbenenge, adding Scheepers’ “persistence” in making this claim was malicious. “We can repeat it 100 times, ma’am, I’m not going to change my version.”
Thursday was the final day of oral testimony at the Judicial Conduct Tribunal investigating a sexual harassment complaint against the judge president. The bulk of the complaint centres on a string of WhatsApp exchanges between the two that stretched over about a year in 2021 and 2022. Mengo says the exchanges were unwanted and constituted sexual harassment, but Mbenenge portrays them as a flirtation in which they both willingly participated as adults.
However, Mengo also claimed that there was an incident in November 2022, when Mbenenge called her into his chambers, pointed to a bulge in his trousers and asked her, “do you see the effect that you have on me?” and whether she didn’t want to suck it. Mbenenge emphatically denies this incident and earlier this week testified it was a fabrication whose purpose was to bolster her sexual harassment complaint. He said her complaint was “laced with lies”.
Initially, the date of the incident was thought to be November 15 because of the way her written complaint was drafted, but during her oral testimony she clarified it had happened on the afternoon of November 14. Mbenenge testified that her version was not supported by the CCTV footage and a car tracker report he had obtained, which showed his movements for the days of November 14 and 15. The CCTV footage did not show Mengo enter his chambers as she had claimed, he said.
But on Thursday, Scheepers suggested the CCTV and car tracker evidence took Mbenenge’s version no further because the footage was incomplete: “We don’t have the full day’s video, do you agree?” she asked Mbenenge. “We also don’t have the video of the other corridor,” she said.
She also said the evidence of his secretary, Zintle Nkqayi, had confirmed that “there were many times that you were in the office when the incident could have occurred”. Mbenenge’s response was to return to his earlier answer that the incident did not happen and that his version was corroborated by the CCTV footage.
“I put it to you that the incident could very well have occurred during one of those unaccounted-for periods when your secretary was not in the office and also when we do not have the video footage,” said Scheepers. Mbenenge repeated it did not happen and that the claim was malicious.
Scheepers suggested that given he had asked Mengo, during their WhatsApp conversations, to be “intimate”, it was probable her version was true. But the tribunal’s chair, retired Gauteng judge president Bernard Ngoepe, said which version was more probable was a matter for legal argument.
Legal arguments will be heard in October.
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