Judge’s Sexual Harassment Tribunal: Advocate Implies Complainant Sanitised Her Part

The Judicial Conduct Tribunal into a complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge continued on Thursday with cross-examination.

• Former Chief Justice Raymond Zondo had not been “satisfied” with the initial sexual harassment complaint lodged by secretary Andiswa Menga against Eastern Cape Judge President Selby Mbenenge, the tribunal heard on Thursday.
• A document, placed before the Judicial Conduct Tribunal probing Menga’s allegations, shows that Zondo requested the complaint be lodged anew.
• Advocate Sikhakhane insisted Menga had sanitised her formal complaint, omitting any of her own “salacious, sleazy and sexual” messages.

Then Chief Justice Raymond Zondo had not been “satisfied” with the initial formal sexual harassment complaint by secretary Andiswa Menga against Eastern Cape Judge President Selby Mbenenge, and had instructed officials to tell her to lodge another complaint.

This is according to a document from the Office of the Chief Justice (OCJ) placed before the Judicial Conduct Tribunal probing Menga’s allegations on Thursday.

Menga says she first lodged her complaint in December 2022 at the offices of the OCJ, with the assistance of an official who typed out her statement and attached their WhatsApp messages before having it commissioned at a local police station.

She says she did not keep a copy of it.

She said she was informed that the complaint had been “misplaced”. She had then drafted a new complaint on her own, and while emotional, had it commissioned locally in early January 2023, and couriered to the OCJ.

This is the statement that came before the Judicial Conduct Committee (which recommended the establishment of the tribunal), and has been used during the tribunal hearing.

On Thursday, advocate Muzi Sikhakhane, for Mbenenge, introduced into evidence the initial “misplaced” complaint, stating it had been sent to Mbenenge’s legal team by the OCJ.

The letter, sent to his attorneys by the OCJ, stated that Judge Zondo was not satisfied with the complaint and had asked that Menga lodge another complaint.

On the first day of the tribunal’s proceedings, Sikhakhane indicated that the Tribunal might have to call Judge Zondo as a witness but was cautioned by tribunal chair Judge Bernard Ngoepe that he would have to make out a proper case for this.

On Thursday afternoon, Sikhakhane began taking Menga through both complaints, noting differences and “word for word identical” similarities, including the same grammatical errors. He said the panel would have to decide whether the similarities were such “that it is incredible that [Menga] did not have a copy” of her initial complaint when she drafted the second one.

He also submitted that she had deliberately left out things in the second one.

But Mengo denied having a copy.

Earlier, Sikhakhane insisted that she had sanitised her formal complaint, omitting any of her own messages and responses in what he described as their “salacious, sleazy and sexual” WhatsApp exchanges.

In her evidence in chief, Menga testified using screenshots of what she said were the many conversations the two had over more than a year.

She claimed that his attentions were unwanted and that she had responded, sometimes in a sexually explicit fashion, because she wanted “peace”. He was her “boss” and she had done it to “please him”, because he did not respect her saying “no”.

Mbenenge claims that it was “consensual flirtation”, that she never explicitly said no.

He specifically denies her claims that he sent her pictures of his own penis, or other men’s private parts and that he called her into his chambers in November 2022 and asked her if she would suck his penis.

During the cross examination on Thursday, Sikhakhane, through a detailed analysis of the documented WhatsApp exchanges and a series of questions, established from her that she had not, in her initial complaint, disclosed most of her own messages and responses.

Sikhakhane also pointed to a series of messages initiated by Mengo referring to a rape case involving a young Rhodes student that involved the issue of consent. Mbenenge had asked her what was the lesson from the matter and what prompted the laying of charges.

Mengo had replied, “Jealousy”, and elaborated on that saying, “When you do not want to be left, or perhaps interest is no longer there from the gentleman or possibly that you were informed there is someone else.”

Sikhakhane said: “You do not disclose [in your complaint] what you said about the ordeal of this particular student.”

He then asked her: “Is it your view that jealousy is a plausible reason for anyone to report sexual abuse?”

Mengo replied: “No”.

Earlier, he also raised the issue that she had, at one stage asked him, “I wonder, if I want money, will you give it?”

She had not disclosed in her initial complaint either.

Regarding the alleged incident in his chambers, Mengo had said in her testimony that it occurred on 14 November 2022 but in her statement she said it was the following day, 15 November.

Cross-examination continues on Friday after which the tribunal will adjourn to dates still to be established.

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