Judges’ secretary Andiswa Mengo would “clearly demonstrate” that the interaction between herself and Eastern Cape judge president Selby Mbenenge was “not flirtatious but rather unwanted by her”, said evidence leader Salome Scheepers in her opening address to a judicial conduct tribunal on Monday.
The tribunal into sexual harassment allegations against Mbenenge is the first time a judge has faced possible impeachment for sexual harassment. Mbenenge has denied the interactions were unwelcome and that he harassed Mengo.
The day began with a new ruling from the tribunal’s chair, retired Gauteng judge president Bernard Ngoepe, that the hearing would be fully open to the public after Mbenenge’s counsel, Muzi Sikhakhane SC, said Mbenenge no longer objected to a public hearing. Initially, the hearing was going to be a hybrid one — partially open and partially in camera.
At issue at the tribunal is a series of exchanges between Mbenenge and Mengo: WhatsApp messages, comments and gestures “regarding her physical appearance made in person while at court”, and an incident in Mbenenge’s office, “during which he made sexual remarks and gestures of a similarly inappropriate nature”, said Scheepers.
Sikhakhane said he would not make an opening statement but would address the tribunal when the case crystallised.
Scheepers said in her opening statement that Mengo’s evidence would illustrate that Mbenenge’s conduct “was of an explicit sexual nature, unwelcomed by her and impacted on her ability to work in a safe and dignified environment”, said Scheepers.
The evidence would show “a distinct pattern” in Mbenenge’s behaviour, said Scheepers. “The judge president consistently initiated the conversations, which typically began with neutral topics such as work-related matters or comments on the complainant’s social media status updates. Once the complainant was engaged in the conversation, the judge president would shift the tone and initiate sexual advances.”
Mengo would testify that “aware of the power imbalance in the relationship and fearful of potential repercussions on her career, she felt compelled to respond in a manner that would placate the judge president, while simultaneously attempting to dismiss his sexual advances”, said Scheepers.
She said the tribunal “must take into account the significant power dynamics at play in this case”. As judge president, Mbenenge “holds substantial influence over the entire judiciary in the Eastern Cape. Despite this power, the judge president never sought to establish whether the complainant was willing to engage in a consensual relationship,” said Scheepers.
Mengo began to give evidence just before lunch, recounting how she first met Mbenenge and how they first began to talk — he had obtained her phone number from a colleague when he needed to arrange a virtual hearing — and how the conversation moved to WhatsApp. After he had seen her with her child, he had asked her about her age, saying that she looked younger than her age and commenting about her “small” or “thin” voice.
One message from the judge president suggested “I will have a look at it” — referring to her voice, she said. “You are the one who wants to look at it. My job would be to give you a task.”
She said that, by this, she had meant this would only happen if she allowed him. He had then asked for pictures as “halfway proof”. At first she did not reply, but he sent an eyes emoji. Then she said her pictures had been deleted from her phone, he responded that he was kidding. When she responded “cool”, he then asked for to send her those pictures that she did have.
Mengo said she felt there was an element now that he was “forcing me” because “there was no way that there were no pictures of me on my phone”.
Her evidence will continue on Tuesday.
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