By Lehlohonolo Lehana
The sexual WhatsApp exchanges between Eastern Cape Judge President Selby Mbenenge and junior judge’s secretary Andiswa Mengo was “consensual flirtation”, Mbenenge’s advocate Muzi Sikhakhane SC submitted on Tuesday.
Cross examination of Mengo got underway after the Judicial Conduct Tribunal heard evidence from Mengo that the Judge President sexually harassed her between 2021 and 2022 through multiple suggestive messages via WhatsApp, inappropriate comments, gestures regarding her appearance at work, and an incident in his chambers where he asked her to suck his penis.
Much of the evidence was contained in documented screenshots of the WhatsApp exchanges between them.
But Sikhakhane put it to Mengo that there was nothing wrong with ‘flirtation”, noting that she had also sent him sexually salacious messages.
He said, “I am not calling you a liar yet”, after pointing out that in her complaint she had omitted her own responses.
Had she not been happy with his advances, Sikhakhane said, she should have kept quiet.
“I do understand the difficulty of being rude to a person who is well-respected. But you had the option not to answer him,” he said.
He said Mengo had suggested in her complaint that Mbenenge be punished and “possibly institutionalised”.
In a series of questions, with which Mengo agreed, he said there was nothing wrong with two people flirting and the tribunal did not have to determine if it was morally right for the two of them to send sexual messages to each other.
Sexual harassment had to be unwanted, persistent and demeaning.
He said women who lied about sexual harassment were “no different from the male misogynists “who offended, and they must also face severe condemnation and punishment.
Questioned by Sikhakhane, Mengo said she agreed that “liars” could not be trusted and that she was aware of the seriousness of committing perjury.
Earlier in the proceedings, Mengo questioned by her own advocate, Nasreen Rajab-Budlender SC (briefed by the Women’s legal Centre), said she had laid the complaint “so that other women would know they can stand on their own and tell their story to the world”.
“It was to tell them to be brave.”
She said she had no reason to lie about what happened.
Asked why she had responded to Mbenenge with sexual comments, she replied, “We are talking about a powerful person. We are talking about someone who is in charge [of the judiciary] of the entire province. It was difficult to say no to him, although I said no, no, no, on numerous occasions.
“More than anything, I was scared of how he was going to treat me at work. And there was no-one who was going to believe me if I conveyed my story.”
Mengo said she had also responded with sexual messages in order to “satisfy him in order for peace at the workplace”.