Eastern Cape judge president Selby Mbenenge told a Judicial Conduct Tribunal that when he sent judges’ secretary Andiswa Mengo an emoji of a peeled banana, immediately after the words “bendizakuphe le [I was going to give you this one]?” he meant it to mean a banana “in the literal sense”.
He did not mean it to signify a penis, as testified earlier at the tribunal by an emoji expert, he said. It could have been a chocolate or “anything nice that one can share”, said Mbenenge. “If you have seen a couple sharing a banana, the one is holding it, the one bites. He or she passes on the same fruit to the other one, they too bite.”
Mbenenge was giving evidence at the tribunal investigating Mengo’s complaint of sexual harassment and was going through the string of WhatsApp messages between the two that stretched over a year from 2021 to 2022. While Mengo says the messages were unwanted and constituted harassment, Mbenenge testified over Monday and Tuesday that the exchanges were flirtatious and were welcomed by her.
Going through their exchanges when she asked to meet in East London, Mbenenge insisted that even when she declined his request for “physical intimacy” she remained flirtatious and was “leading him on”. When he asked if she wanted only friendship, her answer was “aziko mpendulo [she had no answer to that]” and then said she was a person of action, not of words. This was not a rebuff, he said.
He readily admitted that his use of a brinjal and peach emoji in a message about going the “intimate route”, was a reference to sexual intercourse. He also conceded, after being questioned by tribunal chair, retired Gauteng judge president Bernard Ngoepe, that when he used a syringe emoji, saying he should give Mengo a boost, that it may well have been a “sensual” use of a syringe to represent a penis.
Mbenenge said that early on in their chats when he had been asking her for her pictures, Mengo had told him to “earn it” — signifying to him that he had to persevere in his attentions towards her. “Partly my persistence was informed by that,” he said. But there was also a “philosophical notion” about persistence, he said. “Looked at from a Eurocentric perspective, one may say when you persist, you harass. I don’t understand it that way. It is a perspective that does not appreciate my culture,” he said.
Mbenenge said Mengo’s complaint was “laced up with lies” and should not have seen the doors of the JSC. Asked by his counsel, Muzi Sikhakhane SC, why Mengo would lay such a complaint when her life would never be the same again, Mbenenge said he could only speculate, but his view was that there were others behind the complaint.
He said their “flirtatious talks” began in June 2021 and ended around February 2022. “We just stopped it, lost interest — speaking for myself,” he said.
Yet it was almost a year before the complaint came, he said. He said the delay was because it was clear that no sexual harassment complaint could be sustained so “some people somewhere thought that we should embellish this complaint”.
“There had to be this event that occurred in Mthatha, which is fallacious, which is fabrication” — to “bolster the complaint”, he said. He was here referring to Mengo’s allegation that he had called her into his chambers on November 14 2022 and attempted to expose his erect penis to her.
“I can’t help, when reflecting, but say you know what, the complainant could never have done this all by herself,” he said.
He said he and Mengo had assured each other their chats were “clandestine”, yet they had found their way to the public domain. “It is embarrassing to me. I regret that it happened and I can only apologise to South African citizens in so far as they have become privy to embarrassing chats.”
He said his apology had nothing to do with the charges themselves. “I’m simply saying I am embarrassed that clandestine chats have become a public spectacle. They are embarrassing to me, they are embarrassing to South Africans. And I owe it them to say well, as things are, I am sorry that these things have found their way to the public domain.”
Mbenenge’s cross-examination began late on Tuesday evening and will continue on Wednesday.
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