By Lehlohonolo Lehana.
Eastern Cape Judge President Selby Mbenenge was intent on having a “romantic relationship” with judges’ secretary Andiswa Mengo, he said on Tuesday.
The fact that he was married, was irrelevant, he said.
This emerged during cross-examination by evidence leader advocate Salome Scheepers before the Judicial Conduct Tribunal probing Mengo’s complaint that he sexually harassed her in a series of WhatsApp exchanges.
Mbenenge admits to sending most of the messages, including sexually explicit emojis, but says it was a consensual relationship between two adults.
Mbenenge had revealed to the panel his view that judges were not subject to the country’s labour and workplace employee relations laws.
In Mbenenge’s mind, the fact that he is one of the most senior judges in the division and its head, had no effect on how he moved through life or the world, or how he was perceived by others, he told the tribunal on Wednesday.
Judges, he said, were appointed by the President after recommendations by the JSC. Salaries are paid from the National Revenue Fund, which is separate from the Department of Justice.
As independent operatives, they were therefore not subject to the ordinary rules of the workplace.
However, the tribunal has been reminded, this does not give Mbenenge a status above other citizens of the country, as the Constitution upholds the rights of all.
By way of example, Mbenenge set out to explain an occasion when he felt his status had played no role. This was when he had tried to reconcile a court manager who had allegedly insulted the complainant, Mengo. In that instance, he said, he had not acted as a judge, but as a “social human”.
“Unless there is a theory or a notion that judge presidents should only talk to other JPs, this flies in the face of social reality.”
Mbenenge added, “even if I had been a watchman, I would have intervened in any matter where there was conflict between two people in a workplace.”
While it is highly likely that Mbenenge has never been a watchman, it appears his intact self-esteem enabled him to project, into the mind of a “watchman”, a confident and level-headed mediator such as himself.
When it came to how Mengo might have read or interpreted Mbenenge’s behaviour differently, as suggested by Scheepers, Mbenenge’s responses became a pattern through the morning: “That is your interpretation. I see it my way. Or I see it differently.”
In January, Mengo testified that she had to show respect towards Mbenenge – this was after he had first begun WhatsApping her in June 2021 after a personal interaction in the workplace.
“I have to respect him as someone who is also in charge. Even the manner in which I responded to him, I had to be very cautious,” Mengo testified.
Scheepers said this, as well as the fact that Mengo had lodged a complaint of sexual harassment (at great personal cost to both parties, it turns out), was evidence of how she perceived the JP’s advances differently.
Mbenenge replied to Scheepers: “So be it. What I need to say is simply that she might harbour this understanding, but I never understood it that way.
“I never imposed myself on her. You don’t deal with people from the perspective that ‘you know I am a JP’. When I was conversing with the complainant, and remember I am a top lawyer, according to some and the media understanding, when I was chatting with her I was being a social being.”
To which Scheepers shot back, “but youarethe Judge President! You do not have to impose that on her. She knew that!”
Mbenenge replied, “I never imposed myself as a JP. The conversation was not between a JP and a junior staff member. I was simply a social being when talking to her in this instance. It was a conversation between two adults…”
Scheepers began her cross-examination late on Tuesday in a pugnacious mood which continued throughout Wednesday as she drilled down into uncomfortable territory.
At several points, Mbenenge objected to her “tone’. This was after complaining earlier in the week about the quality of her work and complaining often that he was being treated as someone “guilty until proven innocent’.
The JP was also angered when he believed that Scheepers was not focusing exclusively on him while he gave evidence or provided replies to questions. He told Judge Ngoepe that he objected to her side consultations with Mengo’s counsel, advocate Nasreen Rajab-Budlender.
Mbenenge stated he had found this “disrespectful”, at which point Ngoepe intervened, saying that “advocate Scheepers does not mean disrespect. Perhaps a problem will arise only when she says you need to repeat your answer, then that could be the point.