At the end of the Monday’s proceedings in the tribunal investigating sexual harassment allegations against Eastern Cape judge president Selby Mbenenge, it was unclear whether a gender expert would be allowed to give evidence, or whether the judge president would begin his testimony on Tuesday.
The tribunal is the first time a sitting judge has faced possible impeachment for sexual harassment and the allegations come from a junior staffer, judges secretary Andiswa Mengo. When evidence leader Salome Scheepers gave her opening address in January, she said the tribunal “must take into account the significant power dynamics at play”. As judge president, Mbenenge “holds substantial influence over the entire judiciary in the Eastern Cape”.
She told the tribunal on Monday that it was necessary and in the interest of justice that a gender expert witness testifies. Supporting her, Mengo’s counsel, Nasreen Rajab-Budlender SC, said that the work of the tribunal required “not just an evaluation of the facts but also the context in which it all happened”.
When Mengo gave her own evidence in January, the unequal relationship between her and the judge president was how she accounted for some of the answers she gave in WhatsApp messages in response to Mbenenge’s advances, especially those answers that appeared equivocal or encouraging.
“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 no to him, though I said no, no, no, on numerous occasions — and he did not listen or hear my no,” she said.
“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,” she said.
During his cross-examination of Mengo, Mbenenge’s counsel, Muzi Sikhakhane SC, returned to the question of the power relations between the two, and questioned her about theories of power — suggesting the kind of power relationship the tribunal was dealing with was a form of “relational power”. In this form, “where power sits is not permanent”, he suggested. The power in that relationship “can shift”, he said.
Rajab-Budlender said on Monday that in cross-examining her, Sikhakhane had asked Mengo “extensively” about “the definition of sexual harassment, about its manifestation in the workplace ... She was specifically asked about the social theory of power relations. She was asked about her understanding of ‘overt power’ and ‘soft power’ and the theoretical aspects of power”.
“I’m not sure that I can answer those questions myself and I would imagine that none of my colleagues can either. But that is why we need an expert to come and tell us what those things are,” said Rajab-Budlender.
However, it was very late in the day for a new expert witness to be brought, which Scheepers readily acknowledged. Sikhakhane objected, saying it “comes too late”.
“This process must be fair to both complainant and respondent,” he said. He added Mbenenge was ready to give his side of the story — “tomorrow”. The delay was unfair and unjust, he said.
He added that the evidence leader had known all along what the case involved and that all cases of sexual harassment involved unequal power relations.
Scheepers explained that the delay arose because she had tried to find an expert who came from the Eastern Cape and spoke isiXhosa, but she could not find anyone that fit that profile, she said.
Tribunal chair, retired Gauteng judge president Bernard Ngoepe, said he would rule on the gender expert on Tuesday morning and that the parties should be prepared for any eventuality.
Earlier in the day, the Office of the Chief Justice’s national head of security and facilities, Prabagaran Naidoo, testified about the CCTV footage, which had been preserved covering November 14 2022 — the day Mengo alleged Mbenenge called her into his chambers and pointed to his bulging crotch saying “do you see the effect you have on me?”
Mbenege denies the incident outright. The footage that the OCJ still had in its possession was only for certain hours of the 14th — from 8am to 9am and from 3pm to 5.23pm and came from a single camera above a door in the corridor close to the judge president’s chambers.
Mbenenge’s counsel, Griffiths Madonsela SC, suggested to Naidoo that “on the basis of the footage we saw today, it is not possible to sustain a version that Ms Mengo went to a chamber that is next door to chamber number 1 and left to go to the JP’s chamber?” He agreed that, from the footage, it was impossible. However, Naidoo testified that there were other entrances to the JPs chambers.
He also told the tribunal the footage had first been watched by senior judge Bantubonke Tokota in a way that did not follow the correct protocol. Tokota had got the approval of the court manager to watch it, but there was a procedure that was meant to be followed, which had not been done.
Naidoo also said that, after he was informed that a judge had followed the incorrect procedure, he had instructed that the same footage the judge had watched be downloaded from the system and saved to a hard-drive. Then, almost a year later, he had asked that the saved footage be delivered to him at head office.
Tokota had said in an affidavit that he had watched the footage for November 14 and 15. However, when the footage was then delivered to Naidoo, what he received was footage from November 14 and 16.
In Mengo's written complaint to the JSC, the date of the incident was given as the 15th. But when she gave oral evidence in January, she corrected herself and said it was the 14th.
“So what happened to the footage of the 15th?” Rajab-Budlender asked Naidoo on Monday. “I can’t say,” said Naidoo.
She asked him whether it was possible that the footage could have been tampered with. He said it was possible to tamper with the footage once it had been downloaded from the system and stored on the hard drive but could not say that it had been.
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