By Lehlohonolo Lehana.
The Judicial Conduct Tribunal into Eastern Cape Judge President Selby Mbenenge’s conduct heard that CCTV footage from the date of the alleged incident of indecent exposure was not stored — despite footage from the day before and after having been preserved.
The Tribunal investigating Mbenenge’s conduct is sitting for a further five days as it pieces together the events that led to the complaint against the division’s top judge.
High Court secretary Andiswa Mengo has accused Mbenenge of making unwanted sexual advances towards her between 2021 and 2022.
The director of facilities and security at the Office of the Chief Justice, Neil Naidoo took the stand to give testimony before the Judicial Conduct Tribunal.
The tribunal last week heard that Mengo confided in some of her colleagues, who eventually advised that she engage seniors on the allegations, leading to the initial complaint in 2022.
On Monday, the tribunal watched video footage showing a passageway leading to Mbenenge’s chambers on 14 November 2022, which was introduced into evidence by Naidoo.
But it showed very little. Crucially, Naidoo was unable to explain what had happened to the footage from 15 November, the day Mengo claims Mbenenge called her into his office, pointed to his “bulging trousers” and said “look what effect you have on me.”
Mengo previously testified that he had asked her for oral sex, and she ran out of his office.
Naidoo testified on Monday that he had been contacted by the Mthatha court manager sometime in November or December 2022. He was told that “a senior judge” had asked to see the CCTV footage and had been allowed to do so by the control room operator.
Naidoo said he was unaware of Mengo’s sexual harassment claims — or that she would later lodge a formal complaint with the Office of the Chief Justice. But “just in case” it was needed in the future, Naidoo instructed that the footage be downloaded onto a computer hard drive before it is overwritten.
It was only in October 2023, almost a year later, that he instructed that it be transferred to a memory stick and couriered to his office. The memory stick contained footage from 14 and 16 November, but the footage from 15 November was missing.
Questioned by Nasreen Rajah-Budlender, the advocate acting for Mengo, about what had happened to the 15 November footage, Naidoo said: “I can’t say.”
Rajah-Budlender said it was on record that the judge who had viewed the footage was Judge Bantuboke Tokota, who had made a statement about it.
“Judge Tokota says he viewed footage from 14 and 15 November. He said there was nothing worth mentioning about the 14th because it had nothing to do with the rumours regarding the 15th. On the 15th, he saw Mbenenge arrive and leave chambers with his bag. He said there was no sign of Mengo entering his chambers. But we have not seen that today,” she said.
Naidoo said that even if footage of the passage way did not show Mengo going towards Mbenenge’s chambers, there would have had to be another door in that area for security reasons.
Naidoo also said it was possible to “tamper” with footage once it was downloaded from the main system onto a computer hard drive or a memory stick.
Judge Tokota had not followed protocol in requesting access to the footage through the court manager, said Naidoo.
All such requests, even from SAPS, had to be made via his office on a specific form.
Later, it was decided that the tribunal will rule on Tuesday morning whether gender violence expert Dr Lisa Vetten can testify.
Mbenenge does not want Dr Lisa Vetten to give evidence. This, advocate Muzi Sikhakhane told the panel yesterday, was because it would result in the hearing dragging on, which would prejudice his client “who is ready to give evidence tomorrow [Tuesday]”.
He also submitted that it was not in the interests of justice and that the panel could decide on the issue based on the evidence presented already.
The tribunal continues this week with counsel for Mbenenge, Sikhakhane SC, saying he is ready to call his client to the witness stand as early as Tuesday morning.