‘Mutually destructive' versions: Ex-JSC official contradicts Mbenenge accuser's testimony
Eastern Cape High Court Judge President Selby Mbenenge has been accused of sexual harassment by Andiswa Mengo, who works as a judges' secretary in his court.
A JSC Judicial Conduct Tribunal is conducting a gross misconduct investigation into Mengo's accusations, which Mbenenge vehemently denies.
Former JSC law advisor Kutlwano Moretlwe has given evidence that fundamentally contradicts parts of Mengo's testimony.
After claiming she'd forgotten that then-Chief Justice Raymond Zondo 'lost' the sexual harassment complaint made against Eastern Cape Judge President Selby Mbenenge, a former Judicial Service Commission (JSC) law advisor has denied key aspects of his accuser's evidence.
The differences between Kutlwano Moretlwe and High Court secretary Andiswa Mengo centre around whether Mengo completed her first sexual harassment complaint against Mbenenge on her own laptop (which Mengo denies doing, but Moretlwe says she did).
The two women had markedly different accounts of how that statement was completed: Mengo says Moretlwe stayed in her hotel room until after midnight to complete the statement on Moretlwe's laptop, while Moretlwe says she left Mengo at her hotel at around 21:00, with the understanding she would complete the statement on her laptop before the next morning.
The reason that this is important is because Mengo has denied accusations from Mbenenge's advocate Muzi Sikhakhane that – when she was asked to produce a second complaint on affidavit by Moretlwe – she copied much of her first complaint word for word.
Mengo has given evidence that she relied on her WhatsApp chat history with Mbenenge to compile a complaint against him in Midrand in December 2022. Throughout that process, Mengo said, she was assisted by Moretlwe.
Testifying about the pro forma affidavit, she said Moretlwe had asked her to fill it out after her first statement was 'misplaced'. Mengo maintained she had not had access to her first statement when she had completed this second statement.
READ | Ex-JSC official denies Zondo was 'not satisfied' with Mbenenge sexual harassment complaint
'Is it still your testimony that you did not have a copy of the initial complaint?' Sikhakhane had asked Mengo, after pointing to a second example of this repetition.
'Yes, I maintain [that],' she said.
On Thursday, Sikhakhane told Moretlwe that he wished to address 'the elephant in the room': the fact that her account of how Mengo's first sexual harassment complaint had been compiled, and the evidence given by Mengo, were 'mutually destructive'.
'Do you agree with me that these two versions are mutually exclusive,' Sikhakhane said.
Sikhakhane added:
One is untrue and it's either you who are not telling the tribunal the truth or Miss Mengo who did not tell the tribunal the truth
Moretlwe again insisted that, while she had typed Mengo's statement on her own laptop when they compiled the secretary's complaint at the Office of the Chief Justice (OCJ) offices in Midrand, she gave a saved version of that statement to Mengo on a memory stick so she could complete it at her hotel.
'As I've explained, because it was too late, around past 9, I had to get home,' Moretlwe said.
'I then asked her, because we're not finished, can she continue typing, finalising the statement because it was a very, very long story, and even at the hotel, she would still get emotional as well.'
Sikhakhane put it to Moretlwe that her version was supported by the fact that Mengo's second statement 'in certain parts… is the same as the initial one, including mistakes, including spaces between where the word ends and where the full stop is identical, absolutely identical throughout'.
ALSO READ | Mbenenge's 'peeled banana' emoji to secretary was code for 'circumcised penis', expert testifies
Sikhakhane will no doubt use that evidence to bolster Mbenenge's argument that Mengo was not an honest witness whose account of how she was sexually harassed by the married judge president should not be believed.
Mengo's advocate Nazreen Rajab-Budlender has however drawn attention to apparent discrepancies in Moretlwe's evidence, including her claim that she remembered that Zondo had lost Mengo's statement after watching her testify about how it had been lost at the tribunal.
Referring to an email that Moretlwe had sent to the JSC about the statement having been lost, Rajab-Budlender said it had been sent before Mengo testified about how her complaint had been compiled.
It was only then that Moretlwe said she could be 'mistaken'.
Rajab-Budlender subsequently told the law advisor:
'Ms Moretlwe, I must tell you that I find your evidence concerning and that I will argue that your version should not be accepted, particularly as it relates to Ms. Mengo in due course. Do you want to respond to that?'
Moretlwe: 'I have no comment.'
While admitting he had engaged in sexually loaded WhatsApp interactions with Mengo, Mbenenge insists they were consensual. He has also previously told the JSC that certain of Mengo's texts to him, which he described as playful, jovial and flirtatious, could reasonably suggest that she did not find his messages offensive or unwanted.
As a 37-year-old at the time of Mbenenge's alleged harassment, Mengo was significantly younger than the 60-year-old married judge president, who frequently deleted his texts to her and asked that she do the same.
She stressed throughout her evidence that he was her boss and she did not want to get into arguments with him over his sexual comments to her.
She further claimed that a request she made for him to give her money was aimed at stopping him from persisting with his sexually laden demands – which included several requests for her to send him pictures.
The hearing continues.
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