It wasn't about power, ‘it was a conversation between two adults', Mbenenge tells hearing

Daily Maverick

4 days ago

Eastern Cape Judge President Selby Mbenenge says he believes judges are not subject to labour laws or employee workplace relations regulations.
Proceedings at the Judicial Conduct hearing into allegations of sexual harassment against Eastern Cape Judge President Selby Mbenenge were briefly disrupted before lunch on Wednesday, 9 July by placard-waving protesters. They were swiftly removed.
The protesters are evidence of the widespread interest and anger surrounding this seminal South African case dealing with modern power relations in the workplace and how these affect unwanted approaches of a personal nature.
Explaining the short interruption, tribunal chair, retired Judge Bernard Ngoepe, said while the proceedings were open to anyone from the public, 'you may not perform on this stage'.
At the core of this complaint of sexual harassment lodged against the Judge President with the Judicial Service Commission (JSC) by court secretary Andiswa Mengo is whether the unequal power relations in the matter are relevant.
Mbenenge has denied the charges and has maintained that the contact with Mengo was consensual.
Late on Tuesday evening, during cross-examination by evidence leader advocate Salomé Scheepers, Mbenenge revealed to the panel his view that judges were not subject to the country's labour and workplace employee relations laws.
'I see it my way'
In Mbenenge's mind, the fact that he is one of the most senior judges in the division and its head, had no effect on how he moved through life or the world, or how he was perceived by others, he told the tribunal on Wednesday.
Judges, he said, were appointed by the President after recommendations by the JSC. Salaries are paid from the National Revenue Fund, which is separate from the Department of Justice.
As independent operatives, they were therefore not subject to the ordinary rules of the workplace.
However, the tribunal has been reminded, this does not give Mbenenge a status above other citizens of the country, as the Constitution upholds the rights of all.
By way of example, Mbenenge set out to explain an occasion when he felt his status had played no role. This was when he had tried to reconcile a court manager who had allegedly insulted the complainant, Mengo. In that instance, he said, he had not acted as a judge, but as a 'social human'.
'Unless there is a theory or a notion that judge presidents should only talk to other JPs, this flies in the face of social reality.'
Mbenenge added, 'even if I had been a watchman, I would have intervened in any matter where there was conflict between two people in a workplace.'
While it is highly likely that Mbenenge has never been a watchman, it appears his intact self-esteem enabled him to project, into the mind of a 'watchman', a confident and level-headed mediator such as himself.
When it came to how Mengo might have read or interpreted Mbenenge's behaviour differently, as suggested by Scheepers, Mbenenge's responses became a pattern through the morning: 'That is your interpretation. I see it my way. Or I see it differently.'
In January, Mengo testified that she had to show respect towards Mbenenge – this was after he had first begun WhatsApping her in June 2021 after a personal interaction in the workplace.
'I have to respect him as someone who is also in charge. Even the manner in which I responded to him, I had to be very cautious,' Mengo testified.
Scheepers said this, as well as the fact that Mengo had lodged a complaint of sexual harassment (at great personal cost to both parties, it turns out), was evidence of how she perceived the JP's advances differently.
Mbenenge replied to Scheepers: 'So be it. What I need to say is simply that she might harbour this understanding, but I never understood it that way.
'I never imposed myself on her. You don't deal with people from the perspective that 'you know I am a JP'. When I was conversing with the complainant, and remember I am a top lawyer, according to some and the media understanding, when I was chatting with her I was being a social being.'
To which Scheepers shot back, 'but you are the Judge President! You do not have to impose that on her. She knew that!'
Mbenenge replied, 'I never imposed myself as a JP. The conversation was not between a JP and a junior staff member. I was simply a social being when talking to her in this instance. It was a conversation between two adults…'.
Multi-tasking while pummeling
Scheepers began her cross-examination late on Tuesday in a pugnacious mood which continued throughout Wednesday as she drilled down into uncomfortable territory.
At several points, Mbenenge objected to her 'tone'. This was after complaining earlier in the week about the quality of her work and complaining often that he was being treated as someone 'guilty until proven innocent'.
The JP was also angered when he believed that Scheepers was not focusing exclusively on him while he gave evidence or provided replies to questions. He told Judge Ngoepe that he objected to her side consultations with Mengo's counsel, advocate Nasreen Rajab-Budlender.
Mbenenge stated he had found this 'disrespectful', at which point Ngoepe intervened, saying that 'advocate Scheepers does not mean disrespect. Perhaps a problem will arise only when she says you need to repeat your answer, then that could be the point.
'But if she feels she can manage to pick up a word or two and still be receptive to your answer, it should not be a problem.
The weight of the matter
Judge Ngoepe, as chair of the tribunal, has clearly understood the enormous significance of this matter and has tried to navigate this as an older man and retired judge, allowing evidence by gender expert, Lisa Vetten, which Mbenenge's legal team, advocates Musi Sikhakhane and Griffiths Madonsela, had sought to have excluded.
When Mbenenge lashed out on Wednesday, saying the matter had rendered him almost a 'pariah' who would never again be invited to give lectures at illustrious universities such as Fort Hare as a result of the stigma, Ngoepe again intervened in even tones to calm him:
'No matter the court of public opinion, in this tribunal there is no point of departure which says the person is guilty, otherwise the proceedings would be a charade.
'Otherwise the outcome would have been determined already. Irrespective of public opinion, irrespective of what everybody thinks… We are going to decide this case on the facts before us and in terms of the law, irrespective of who said what.'
Mbenenge said he was not attacking the tribunal.
'I would never do that.'
With regard to Scheepers' relentless cross-examination, Judge Ngoepe told Mbenenge that 'you need to understand advocate Scheepers' job, and she is doing her best and she is trying to be as fair as she can possibly be.
'For the rest, this remains with us. We can read and write. That is why we are here. We are going to read every single message and understand it in the way we are capable of understanding.'
Whosoever diggeth a pit
It has not been pleasant for anyone watching Mbenenge squirm under the weight of deeply intimate and personal details being made public.
Under attack is his very worldview, which appears to contain so many halls and mirrors, it has detached him from self-reflection or control.
At one point, while searching for a piece of evidence, he looked up and said 'I am lost', which certainly sums up to some extent his foray into his ill-considered advances to Mengo and the Earth-shattering consequences.
Mbenenge had told the tribunal of his talent for 'being able to read a room' and that in his interpretation of all the WhatsApps between himself and Mengo, she was a 'willing participant'.
This was regardless of initial rebuffs, which were followed by his relentless persistence, which he claimed was 'flirtation' and which he had hoped would become physical.
Scheepers shot back that 'you intentionally did not read the room. You read what you wanted to read. You asked her 11 times for photographs, you even begged. And still she did not send any nude pictures.'
Scheepers put it to Mbenenge that 'the dominant clause here is you asking for pictures.'
The JP shot back angrily, 'No! The dominant clause is the taking of more pictures. She had already sent one [of her WhatsApp profile pictures, according to evidence]. '
He agreed that his messages were sent after hours, a time, he told the tribunal, that was more 'convenient' for him as a busy court head. He said he had been steering 'things in a direction, seeing as I had developed an interest in her'.
There were many occasions when it appears Mbenenge's messages were not convenient for Mengo, who would either not respond, or when she did, she would say she was exhausted, or at the gym or cooking, or sleeping, or preparing for work.
Scheepers asked Mbenenge why he had not informed or established with the court secretary up front that she might want this intimate relationship.
'I have yet to read a book where when you are interested in a woman, these are the steps you must take. You greet them, go for pleasantries, buy her a chocolate. I have not been charged here for flirting in one manner or another. Were the chats welcome? I say they were.'