How Judge President Mbenenge exploited power in Andiswa Mengo's sexual harassment case at the Tribunal
Eastern Cape High Court Judge President Selby Mbenenge was cross-examined.
Image: Office of the Chief Justice
A clear power imbalance exists between Andiswa Mengo, the complainant in a sexual harassment case, and Judge President Selby Mbenenge, the accused.
Mbenenge allegedly exploited this imbalance despite Mengo's repeated resistance over approximately 11 months.
These allegations were presented at the reconvened Judicial Conduct Tribunal, where oral arguments are currently being heard regarding the accusations against Mbenenge following Mengo's formal complaint.
Mengo’s counsel, Advocate Nasreen Rajab-Budlender SC, stated: “There is an undeniable and clear power imbalance between the complainant and the respondent. He exploited that imbalance to harass the complainant.”
Throughout the Tribunal hearings, the JP maintained that he had not pressured Mengo and that when his conversations with her via WhatsApp took a “flirtatious” and “sensual” twist, it was his efforts to court her.
Andiswa Mengo laid a complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge.
Image: Office of the Judiciary
In her submissions, Rajab-Budlender SC said sexual harassment is prevalent in society and in the South African legal profession, “it is more prevalent than the global average and that 43% of women in the profession reported experiencing sexual harassment while 25% have considered leaving or have left the profession” as a result of sexual harassment.
Turning to Mbenenge’s demeanour and conduct during the Tribunal, Rajab-Budlender SC emphasised that it was not easy for a subordinate to “stand up” to him.
“This is not someone who is easy to stand up to. It may be easy if you’re a judge or senior counsel.
“It started with work, then suddenly switched to sexual conversations. There is a pattern of not taking no for an answer. Whatever she did, he did not leave her alone,” she said.
Eastern Cape Judge President Selby Mbenenge gave his version to the Judicial Conduct Tribunal regarding accusations of sexual harassment against him.
Image: Office of the Chief Justice / S Lioners
Tribunal evidence leader, Senior State Advocate Salomé Scheepers, said Mbenenge’s evidence was “riddled with improbabilities” and that the WhatsApp conversations showed “deeply troubling behaviour from a senior to a subordinate”.
Scheepers said Mengo had continuously attempted to deter Mbenenge’s advances, but he ignored her when she used humour or silence to deflect the conversations.
She added that Mengo made her early and consistent complaints and documented the conversations “without embellishing”.
Scheepers said the conversations that Mbenenge had with Mengo on WhatsApp “reflect a grooming pattern”.
Scheepers submitted to the Tribunal that Mengo’s version is credible and the allegations against Mbenenge amounted to gross misconduct and that his conditional apology, although belated, was recognition that his behaviour was inappropriate.
During the Tribunal, Mbenenge maintained that he was “not pressuring” Mengo despite a bout of silence from her for five days and prolonged delays in responses to his messages.
While the matter is precedent-setting in that it is the first case in which a judge president is made to answer to allegations of sexual harassment before a Judicial Conduct Tribunal chairperson, retired Gauteng High Court judge president Bernard Ngoepe said that the outcome of this Tribunal hearing will not determine how other cases of sexual harassment in the judiciary will be handled.