By Lehlohonolo Lehana.
Eastern Cape judge president Selby Mbenenge on Monday took the stand for the first time to testify at the judicial conduct tribunal investigating a sexual harassment complaint filed against him by his secretary, Andiswa Mengo.
Mengo has accused Mbenenge of sexually harassing her through a series of WhatsApp messages, including sexually explicit photographs and “stickers”.
Mbenenge claims their relationship was consensual. He admits sending some of the messages but specifically denies sending her a picture of his penis or asking her for oral sex in his chambers. Should he be found guilty, he could face impeachment.
He lamented evidence leader Advocate Salome Scheepers before the tribunal investigating sexual harassment allegations levelled against him.
“Evidence leader, you are investigating in an investigative process. You are not the complainant’s lawyer, you are not a prosecutor, such as in a criminal case. It is incumbent on you to investigate in the true sense of the word.”
Mbenenge was relaying the events of 15 November 2022, one of the dates in which he is alleged to have attempted to expose himself to Mengo in his chambers.
However, the judge president said that he left the building around midday that day and even presented the tracker report for his vehicle before the tribunal.
“I got to chambers around 9 o’clock. I left around 12, noon. I never saw Ms Mengo on that day. The trip report shows that after attending to a few chores around Mthatha, I left and got back to East London in the afternoon. It was a Tuesday. I went to the car wash and back home.”
Mbenenge lashed out at Scheepers for disregarding the document when it was presented to her by his legal team.
Mbenenge also denied sending nude photographs and making lewd comments to Mengo, saying his remarks about her clothing the day before the alleged incident were about courtroom decorum and were not sexually suggestive. Mengo herself, he said, had initially written in her affidavit that the comments had not offended her.
“Today, the evidence leader has the audacity — with due respect to her — to say that, among other things, I am being charged with ridiculing the complainant,” Mbenenge said. He maintained that, as judge president, he is tasked with upholding professional standards, including the dress code of legal professionals.
Mbenenge’s defence counsel, Muzi Sikhakhane, outlined four themes for cross-examination for the last week of the tribunal: Mbenenge’]’s personal history and career; the alleged incident of 15 November; the alleged photos of his private parts and flirtatious messages exchanged via WhatsApp.
He was surprised that the tribunal included allegations of “incapacity” and “gross incompetence”, which he described as vague and unjustified. Appointed as judge president in 2017, Mbenenge told the tribunal that he has written 13 reported judgments as a high court judge and six as judge president.
Sikhakhane said Mbenenge’s record was not presented to boast, but to refute claims of incapacity and incompetence, which had nothing to do with the other charges. Mbenenge said he had introduced a uniform judicial case flow management system in the Eastern Cape high court, which reduced backlogs, as part of his successes.
Sikhakhane asked Mbenenge about recent media portrayals of him as a “sexist judge”, suggesting he had become invisible in the judiciary because of the allegations. Mbenenge said he had endured public humiliation and felt presumed guilty before due process had run its course.
“I have appointed females to act in my division. I have encouraged secretaries to study law,” he said, arguing that the notion that he views women as objects “has no factual basis”.
He added: “I see women as persons who can engage in whatever form of relationship. What is important for them is to be treated as persons.”
Mbenenge also testified that there had been pushback from residents when he had ordered that Grahamstown be changed to Makhanda and Port Elizabeth to Gqeberha.
Tribunal chairperson, retired judge Bernard Ngoepe, denied the application brought by Nasreen Rajab-Budlender on behalf of her client Mengo to question the witnesses brought by Mbenenge’s legal counsel. JP Mbenenge is one of the four witnesses.