By Lehlohonolo Lehana.
Power dynamics in the workplace played a critical role in shaping how Andiswa Mengo responded to alleged sexual harassment by Selby Mbenenge, gender-based violence specialist Lisa Vetten told the judicial tribunal into the conduct of the Eastern Cape judge president.
Vetten testified on the power dynamics surrounding the case.
The judge president faces misconduct claims brought by High Court secretary Andiswa Mengo, who accuses Mbenenge of making unwanted sexual advances towards her between 2021 and 2022.
This is the third sitting since the tribunal first convened in January.
On Monday, evidence leader Salome Scheepers asked Vetten to analyse 47 days of WhatsApp conversations, comprising 837 messages — 526 from Mbenenge and 311 from Mengo.
Vetten began her work in the 1990s through the Sexual Harassment Education Project, where she trained workers affiliated withtrade union federation Cosatu to develop codes of conduct. She later contributed to policy development in the Department of Higher Education and Training and served as co-chair of the Gender Equity Office at the University of the Witwatersrand.
Vetten explained that she used the 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace to guide her assessment.
The code, published by the department of employment and labour under the Employment Equity Act, defines sexual harassment as physical conduct such as unwanted touching; verbal and non-verbal conduct including suggestive comments or images and the creation of a hostile workplace environment. It also refers to quid pro quo harassment, where sexual favours are sought in exchange for opportunities or favourable treatment.
Though there is reference to other evidential material since the hearings began, Vetten says she only analysed the WhatsApp exchange between Mbenenge and his accuser.
But before that, she explained the dynamics of consent in the context of unequal power.
“The coercive circumstances you can think about as recognition that it is a so-called choice, in a context of no choice or constrained choice. The coercive circumstances are saying to us, ‘Look at the context’, yes or no doesn’t occur in a vacuum. [We must] look at what’s going on around that person, and what are the pressures on them? Have they given meaningful consent?”
According to Vetten, Mbenenge and Mango exchanged over 800 WhatsApp text messages over seven months.
In her breakdown, the expert found over 500 messages were from the judge president, and about 300 were from Mengo.
She said over time, the frequency of Mengo’s responses began to wane.
“So, where you have 60, 32, 84 texts, it’s now down to one to three, to a maximum of six. You also see that the complainant is responding less and less often. There are days when she is not responding at all.”
Tribunal chair, retired judge Bernard Ngoepe, questioned whether Vetten was making assumptions when she told the hearing that Mengo was reluctant to yield to Mbenenge’s request for a topless picture of herself.
Vetten said the complainant had used different methods to avoid responding to the judge president’s advances, including deflecting, delaying, and avoiding the response.
Vetten’s assessment of the text messages concluded that Mengo’s responses lacked enthusiasm and reflected discomfort. She observed that the power disparity between the judge and the legal professional complicated Mengo’s ability to express herself freely.
While Mbenenge was not her direct supervisor, his seniority, public stature and institutional influence created a context in which dissent could carry professional risk.
“Saying ‘no’ to someone who is your senior is difficult. It is an inversion of the workplace relationship and raises questions of victimisation if the response is not what is expected.”
Vetten also highlighted that sexual harassment cases are more complex in environments with multiple layers of hierarchy, such as the judiciary. The formality and authority embedded in such institutions increase the vulnerability of those lower down in the structure.
However, Mbenenge’s legal representative, Muzi Sikhakhane, questioned Vetten’s impartiality and the objectivity of her expert analysis: “A tribunal cannot, and should never, trust an expert who supports, or is sympathetic to, a particular version of a litigant.”
He said that expert opinion should be an independent product of the witness, uninfluenced by the outcome of the case.
Sikhakhane further argued that parts of Vetten’s analysis ventured into the territory of psychoanalysis, which he suggested was outside the appropriate bounds of expert interpretation for that forum.