‘Incorrect’ that Zondo was dissatisfied with first complaint against Mbenenge, tribunal hears

It was “incorrect” that former chief justice Raymond Zondo was “not satisfied” with the first version of a sexual harassment complaint laid against Eastern Cape judge president Selby Mbenenge, a judicial conduct tribunal heard on Wednesday. 

This was the evidence of former Judicial Service Commission official Kutlwano Moretlwe at the tribunal investigating sexual harassment allegations against Mbenenge made by judges secretary Andiswa Mengo. In January, Mengo was grilled by Mbenenge’s legal team about why she had submitted a second version of her complaint.

Mengo testified that she had to redo her complaint because she was told by Moretlwe that her initial one, submitted in December 2022, had been “misplaced”. But Mbenenge's legal team produced a letter from the JSC secretariat, which said Zondo had been dissatisfied with the initial complaint and told the secretariat that Mengo be asked for another one. 

“That’s not how it happened,” said Moretlwe on Wednesday. She explained that she was the person who had initially helped Mengo type up her complaint when Mengo travelled from the Eastern Cape to the offices of the Office of the Chief Justice in Gauteng and had delivered it to Zondo.

However, Zondo had later contacted her to tell her that he had misplaced the complaint and asked her to request Mengo to redo it — this time in the form of an affidavit. It had, the first time, been written on the Judicial Conduct Committee’s complaints form, she said. 

“The chief justice also mentioned that, though he had read the complaint, it was very difficult for him to know which screenshot related to which event,” she said. He had asked that Mengo cross-reference between the body of the complaint to the screenshots, said Moretlwe.

She said when she was later contacted by staff at the JSC secretariat, she had forgotten what had happened and it was only when she heard Mengo give evidence in January that it “jogged my memory” that the complaint had been misplaced, she said. 

In response to a question from evidence leader Salome Scheepers, Moretlwe agreed that the only changes requested by Zondo were that the complaint should be in affidavit form and that there should be cross references between screenshots of the WhatsApp messages between the two and her references to them in the body of the complaint.   

Moretlwe will continue to give evidence on Thursday and is yet to be cross-examined by Mbenenge’s counsel.

Earlier on Wednesday, Mbenenge’s counsel Griffiths Madonsela SC continued his cross examination of expert witness Dr Zakeera Docrat, suggesting that when Mengo used the “monkey-face” emoji (a monkey with its hands over its eyes) in reaction to some of Mbenenge’s texts, he understood these to be flirtatious. 

Docrat, a forensic and legal linguist, was called to give evidence on the meanings of the emojis used by the two in their WhatsApp exchanges. Their WhatsApp chats, which include many emojis, make up a significant portion of the case against Mbenenge.

His defence against the sexual harassment charge is that, while the two did have sexual conversations, these were not unwelcome by Mengo. If they were, this was not clearly conveyed to him — making the meaning of the emojis used by the two important evidence.

Madonsela suggested it was “a cardinal rule of communication” that it was the responsibility of the sender of a message to ensure that the receiver understood it clearly. Docrat said she would agree with that proposition. 

He took Docrat to specific instances of emojis used by Mengo. One was what Madonsela called a “salacious discussion” about the exchange of photos between the two, in which Mengo had said: “Yazba mna xa ndifuna imali uzandinika [do you know that when I want money you will give it to me?]” followed by a monkey-face emoji. 

“Here is a discussion ... about them exchanging pictures ... and then she comes up with this, springs up with this suggestion, or comment, in the middle of this discussion saying, ‘you know you must understand that I also want money, you’ll give me money if I want it,’ and then punctuates it with this monkey emoji. Is that not consistent with flirting?” 

But Docrat said it signified that she was shy and embarrassed — because she was asking for money from Mbenenge. 

Docrat had testified on Tuesday that, in many instances, the use of the ROFL emojis was an “automatic response” by Mengo, or used to “laugh it off” or to try to make the conversation lighter.

But on Wednesday when asked about a text where Mengo used the ROFL emoji alongside the words “foreplay kindles”, Docrat said here, Mengo was using the ROFL emoji differently: “She’s laughing ... [it] wasn’t a sign of disagreement.”

Asked by the panel’s chairperson, retired Gauteng judge president Bernard Ngoepe, “what was it a sign of?” Docrat said it was a sign of agreement to the conversation. 

Madonsela suggested that, according to her evidence, Mengo’s messages had conveyed that she was “laughing it off”, that she was “embarrassed”, sometimes that she was “in agreement with sexual conversation”. At other times, suggested Madonsela, she had expressed “contradictory messages”, suggested Madonsela. Docrat agreed.

Madonsela then suggested that, at no point, did Mengo rebuff the sexual overtures made by the respondent. Docrat did not agree. She referred to a specific instance where Mengo had used a sticker, saying “Honourable member, don’t do that.”