Counsel for Eastern Cape judge president Selby Mbenenge suggested on Thursday that Andiswa Mengo, who has accused Mbenenge of sexual harassment, changed her initial misconduct complaint to the judicial conduct committee and grilled her about her earlier testimony on this subject, twice asking her if she was sticking to her earlier story.
Thursday was day 9 of the judicial conduct tribunal hearing investigating Mengo’s complaint. The tribunal, chaired by retired Gauteng judge president Bernard Ngoepe, is the first time a judge has faced possible impeachment for sexual harassment allegations.
Mengo testified earlier that she had to redo her complaint because she was told by the Judicial Service Commission's (JSC) secretary that her initial one, submitted in December 2022, had been “misplaced”.
But Mbenenge's counsel, Muzi Sikhkahane SC, produced a letter from the JSC secretariat, which said former chief justice Raymond Zondo had been dissatisfied with the initial complaint and told the secretariat that Mengo be asked for another one.
It is not clear what Zondo’s dissatisfaction with the initial complaint was. When Sikhakhane suggested “another complaint, it means an improved complaint”, the tribunal’s evidence leader Salome Scheepers interjected to say “improved complaint” were not the right words because the tribunal did not give the reason Zondo was not satisfied.
“It can be procedural reasons, we don’t know,” she said.
But Ngoepe said even if the improvement related to procedure, it was still an improvement.
Mengo testified earlier that she had, without assistance, rewritten the complaint without having obtained a copy.
When his cross-examination began on Tuesday, Sikhakhane grilled Mengo about this, asking why she had not simply asked then-JSC secretary Kutlwano Moretlwe for the unsigned version of the initial one Mengo had lodged — since Mengo said she and Moretlwe had sat together drafting it, with Mengo speaking and Moretlwe typing.
Mengo said: “At that time I was very emotional, I did not think of asking her.”
But Sikhakhane said he would argue that she was not telling the truth and “that the ordinary thing would be to request the typed statement”. He would argue she was “less than candid on this issue”.
By the time the hearing adjourned for the day, they had identified eight instances of word-for-word identical statements — even a misplaced full stop in the one was misplaced in the exact same way in the second
On Thursday, when he returned to this topic, Sikhakhane said Mbenenge’s attorneys had got an unsigned copy of the initial complaint from the JSC secretariat when they had asked for it. With Mengo, he began to compare the two versions — the initial one lodged in December and the one before the tribunal, lodged in January.
The initial version was not in the form of an affidavit, Mengo agreed. Also, in the initial complaint, Mengo recounted “a heated discussion” she had with a court manager, in which Mengo had stood up “to grab the knob of the door” when the court manager wanted to leave — “you physically block your immediate superior from leaving a room”. Mengo agreed that her later version did not contain this part.
Sikhakhane then asked Mengo to read certain sentences from both. In each instance the sentences were “absolutely identical”, despite an almost one-month difference between the writing of the two. By the time the hearing adjourned for the day, they had identified eight instances of word-for-word identical statements — even a misplaced full stop in the one was misplaced in the exact same way in the second.
“Is it still your testimony that you did not have a copy of the initial complaint?” Sikhakhane asked Mengo — the second time he asked her this question.
She stood by her earlier testimony.
Sikhakhane had on the first day of the tribunal said his team wanted to subpoena Zondo.
The tribunal continues on Friday.
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