The power dynamic in the relationship between judge president Selby Mbenenge and judges’ secretary Andiswa Mengo, who has accused Mbenenge of sexual harassment, was the focus of a segment of Mengo’s cross-examination on Wednesday — and could become an important factor for the tribunal in ultimately determining whether the judge president is guilty.
A leading 2016 labour appeal court judgment said sexual harassment “at its core” was about “the exercise of power” and “in the main reflects the power relations that exist both in society generally and specifically within a particular workplace”.
As the first judicial conduct tribunal to probe sexual harassment by a judge, the tribunal may reveal how the power relations manifest in the judiciary and test how the judicial disciplinary system treats harassment allegations.
In an earlier ruling, the tribunal's chair, retired Gauteng judge president Bernard Ngoepe, seemed aware of this. He said constituting the tribunal already sent a “strong and unequivocal message” that it did not matter how junior someone was, their sexual harassment complaint “would be diligently investigated and appropriate steps taken against the accused person irrespective of their seniority”.
The subject of power relations has an additional significance in the facts of this case because Mengo said the unequal power relationship between the two was why she did not always respond with a clear “no” to his advances and why she sometimes responded in a sexual way.
An essential requirement of sexual harassment, in law, is that the advances of the alleged harasser are unwanted and unwelcome. Though Mengo testified that she was always uncomfortable with Mbenenge’s advances, Mbenenge’s counsel, Muzi Sikhakhane SC, suggested to her that her responses were reasonably open to another interpretation.
Over Tuesday and Wednesday, he took her painstakingly through some of her responses, suggesting to her, with each one, that whatever her true feelings may have been, it was not unreasonable “for a reader, for an outside observer, to conclude that ... the truth about how you feel [was] not communicated”.
Sikhakhane suggested — referring to an exchange about sexual positions — that “anyone reading an answer like that would understand it to mean you don’t mind ... In fact, ma’am, you called this discussion disgusting. Would you agree that your answer is as disgusting as the suggestion you are responding to?” he said.
“Yes,” responded Mengo.
“Both of you were exchanging salacious, disgusting messages consensually,” he said.
“Yes,” she responded.
Sikhakhane also spent much of his cross-examination pointing out what he said were inconsistencies in Mengo’s evidence, especially between her written complaint to the judicial conduct committee (JCC) and her testimony before the tribunal, saying she had concealed from the JCC those portions of her own messages that were sexual and those that “could be interpreted as you being amused by the conversation”.
Mengo had earlier testified her laughing emojis meant embarrassment or were sent because she did not know what to say. But Sikhakhane said an expert witness would tell the tribunal that the emoji meant “rolling on the floor with laughter”. On Tuesday Mengo had, in response to questions from Sikhakhane, said when she received a laughing face emoji from Mbenenge, she understood it to mean “he found it to be funny”.
The whole of the first week, and over Monday, Mengo told her story. Her evidence can be distilled as describing an ordeal, with incidents over more than a year, in which Mbenenge’s advances — mostly through messages on WhatsApp — became increasingly intense and intrusive. She said they included pornographic pictures and videos, pictures of “private parts”, requests for her own naked pictures, a request for them to “be intimate” and his refusal to hear her nos.
Mbenenge denied sending her pictures of private parts.
On Monday Mengo testified that in November 2022 they had an encounter at the Mthatha high court where he had called her into her his chambers, had pointed to his crotch, where there was a noticeable bulge, and said: “Do you see how much effect you have on me?”. As he “was fiddling with his zip”, he asked her “if I didn’t want to suck it”.
As she came to the end of her testimony, evidence leader advocate Salome Scheepers asked her how the experience had affected her emotionally.
We are talking about a powerful person. We are talking about someone who is in charge of the entire province. It was difficult to say to say no to him, though I said no, no, no on numerous occasions — and he did not listen or hear my no
— Andiswa Mengo, judges’ secretary
She said: “It broke me. It took away my dignity. It took away the kindness I always showed my colleagues. It tore me apart and it left me naked.”
Yet throughout her evidence, even before her cross-examination started, there were questions raised about how she had responded to Mbenenge’s advances — questions that cast doubt on whether the advances were unwelcome:
- Why, when he asked her “Ndi wrong-o? [am I wrong?]”, did she respond “Tuuuu [not at all]”?
- Why, when Mbenenge sent messages then deleted them, did she respond: “You write and delete, but you know I am busy.”
- Why had she commented, “Ucute lonto [you are so cute],” to a photo Mbenenge had sent of himself?
- Why did she say “semandi [it’s nice]” to a deleted message from the judge president, which she said was a collage of different sex positions?
Her subordinate position as a secretary was central to her answers to these questions. On Tuesday morning, in answer to her own counsel, Nasreen Rajab-Budlender SC, Mengo said: “We are talking about a powerful person. We are talking about someone who is in charge of the entire province. It was difficult to say to say no to him, though I said no, no, no on numerous occasions — and he did not listen or hear my no.
“More than anything, I was scared of how he was going to treat me at work because I don’t know what he was going to do to me. And there was no-one who was going to believe me if I was going to convey my story.”
On Wednesday Sikhakhane returned to issue of power relations. He suggested to Mengo that according to the organogram, she was not employed by the judge president or any judge but by the department.
She said that may be true “on paper” but “by actions ... he acts as such” and he made sure “I should feel it”.
Sikhakhane said: “You cannot lose [your] job because a particular judge just doesn’t like you. A judge can never make you leave the office of the chief justice just because he says so.”
Sikhakhane said Mengo and her lawyers had introduced the subject of power relations and then took Mengo through a theoretical framework, suggesting the kind of power relations the tribunal was dealing with was a form of “relational power” and, in this form, “where power sits is not permanent”. The power in that relationship “can shift”, he said.
His line of questioning was here cut short by an objection from Rajab-Budlender, who said a theoretical framework had not been canvassed with Mengo, who had been asked about her experience and was there to testify on the facts. The power relationship between the two was one of many aspects of a complaint, whose contours the judicial conduct committee described as “complex”, that have been canvassed so far.
Sikhakhane also questioned Mengo at length on a picture attached to her statement to the JCC, saying she had said it was of the judge president’s penis. Mbenenge denied ever sending Mengo a picture of his penis. “It is false that the respondent sent you an image or a photo of his private part,” he said.
“I dispute that,” she said.
“It is this picture that has tarnished the respondent’s reputation and probably broke his family,” said Sikhakhane.
“It’s one of the pictures,” Mengo responded.
It also emerged there were several witnesses still to come, including expert witnesses. With just two more days scheduled for the hearing, it is unlikely that the tribunal will end on Friday. With a long path to tread, it may be that the power relationship takes a back seat, but it is likely that it will be returned to when Mbenenge testifies and when legal argument is made.
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