Forensic expert says ‘impossible’ to tell by phone analysis whether Mbenenge sent pornographic pictures to Mengo

It was impossible to ascertain the origin of “pornographic” pictures that judges' secretary Andiswa Mengo claimed had been sent to her by Eastern Cape judge president Selby Mbenenge, a forensic expert testified at a Judicial Conduct Tribunal on Monday. 

The Judicial Conduct Tribunal into sexual harassment allegations resumed on Monday and is scheduled to run for another two weeks. Much of the case against Mbenenge is based on WhatsApp exchanges between the judge president and Mengo, and the whole of Monday was given to the expert evidence of Francois Möller, a digital forensic investigator and data analyst.

While the majority of the messages have been admitted by the Eastern Cape judge president, a few are specifically denied — including sexually explicit images and a picture of what Mengo testified in January was Mbenege’s “private part”. 

These disputed messages were attached as annexures to her original complaint to the Judicial Service Commission but they were not part of what was downloaded from her phone when it was handed in later for forensic analysis.  

Möller testified that Mengo’s explanations for why this was so “possible”, including that two were stickers which we she had downloaded and saved to her gallery. “There is no way to determine the origin,” he said. It was not possible to say it did not come from someone, but also not possible to say it did come from someone, said Möller.

On the now infamous picture of a “private part”, Möller said that the image that was attached to Mengo’s complaint contained too little information to tell whether it was a screenshot or a WhatsApp message. All that it indicated was a time: 9.05am. 

Mbenenge’s counsel, Griffiths Madonsela SC, asked him to perform a search of his forensic report for “any message” between the two sent at that time. Möller said: “It comes back to me and say there are no matches.” However, when he was questioned on this further by the tribunal’s panel, he said that this could have been because the message had been deleted — either by Mengo or Mbenenge.  

He also testified that there was no way of telling that a message had been sent at that specific time, even if its content had been deleted. Sometimes it was possible to recover deleted messages, but it depended on whether they had been over-ridden later, he explained. 

Mengo’s counsel, Nasreen Rajab Budlender SC, asked: “Mr Möller, just for the avoidance of any doubt, am I correctly understanding your evidence that the fact that you did not find any message or screenshot on Ms Mengo’s phone does not mean it did not exist?” 

“Exactly, yes,” he said.