Eastern Cape judge president, Selby Mbenenge. (Judges Matter)
Eastern Cape judge president Selbe Mbenenge replied to a request from the colleague who has accused him of sexual harassment for help with a study assignment on gender-based violence by sending her a picture of a half-naked woman.
The exchange is recorded in evidence traversed on Friday by the judicial conduct tribunal hearing testimony from Andiswa Mengo, a judge’s secretary in the division who testified this week that Mbenenge hounded her for sex over a period of several months in 2021.
Mengo responded to the picture of a muscular woman dressed in only a T-shirt by sending the judge president an emoji of a teary-eyed face.
She started weeping when evidence leader Salome Scheepers asked her how the photograph Mbenenge sent made her feel.
“I felt naked and my emotions were torn,” she replied when questioning resumed after an adjournment.
In the same conversation with Mbenenge on July 7, she later sent a sticker showing a man hanging himself with toilet paper.
“I wanted to tell him that these messages that he has sent are putting me under a lot of stress,” she explained.
On the morning of July 8, the judge sent her something he had written on gender-based violence, which he told Mengo he deplored, as she had requested.
Mengo has repeatedly told the tribunal that she felt and humiliated by the nature of Mbenenge’s WhatsApp messages and the fact that, regardless of how she responded, he invariably turned the conversation to sex.
The tribunal has heard throughout this week that her handling of the situation veered between firmly rejecting his advances and reciprocating with sexually-charged innuendo and, on occasion, flattery.
The same pattern was evident in the transcripts of text conversations from which Scheepers led evidence on Friday.
On 18 July, Mbenenge sent a flurry of messages that were subsequently deleted. This too was a pattern in their conversations and Mengo has testified that these were frequently pornographic images. She told the tribunal that, on 17 June, Mbenenge sent her a picture of his penis before asking for a sexual favour.
Mbenenge has categorically denied sending such a photograph and a number of explicit pictures the previous day which were followed by text messages in which, Mengo told the tribunal, he was enquiring about her favourite sexual position.
The texts from the judge president to Mengo a month later on the 18th, read as unambiguously sexual.
At the start of this conversation, there was a deleted image, which the complainant said was once again a cluster of pictures showing a couple engaged in sex. She responded with a raft of emojis depicting a woman running away.
Mbenenge went on to type “half insertion”.
To this, Mengo replied with the words “foreplay kindles”. The judge replied: “I mean eventually.”
The exchange continued in this vein with Mbenenge asking “slowly?” to which Mengo replied “please”. There was another deleted message which Mengo said contained the crude reference “Long Tom”, which she interpreted as a reference to the size of his penis. Her reply to this text, according to the transcript, was “Ofcoz”.
Scheepers asked why she responded in this manner.
“Did you want foreplay?”
Mengo shook her head and said not.
“I did not, me, myself, want to have foreplay with him.”
Scheepers asked: “Then why did you send this to him?”
Mengo replied: “I sent this to him because I did not know what to say and he is someone who just does not listen when I say ‘no’.”
The 37-year-old single mother has stressed throughout her testimony that she was keenly aware that Mbenenge held a powerful position and that she feared she could lose her job.
She has also noted that she was mindful of his age — 60 — and the fact that he is a father and a respected church figure. At several turns, with reference to his age, she said that she believed he should have been able to read between the lines in their exchanges and sense her reluctance and anger.
On Friday, she told the tribunal that she felt “like his victim, when he texted once in July to ask whether she was alone, because she was, although she replied in the negative.
What is striking about their text conversations, is not only the content, but the sheer frequency with which the judge president contacted at all hours, including on weekends and public holidays.
Mbenenge has told a judicial conduct committee of the Judicial Services Commission that their interaction was “flirtatious” but consensual.
His legal counsel, advocate Muzi Sikhakhane, is expected to argue this line when his client takes the witness stand at the tribunal.
In December, the chairman of the tribunal, retired Gauteng judge president Bernard Ngoepe, ruled that evidence that was not denied by Mbenenge would be heard publicly, but evidence on messages he denied sending would be heard in camera.
However, this changed earlier this week when Mbenenge dropped his objection to all evidence being open to the public, leading legal observers to speculate that Sikhakhane would portray the complaint as a manhunt on a senior member of the judiciary.
Mbenenge is the first judge in South Africa to face impeachment for sexual misconduct. Ngoepe has said the evidence being heard has the potential to do grave harm to the judiciary.
The hearing is scheduled to continue until 24 January.
