Mbenenge tribunal postponed as lawyers argue relevance of gender expert
Eastern Cape Judge President Selby Mbenenge. (Nelius Rademan/ Foto24/Gallo Images)
The tribunal hearing on the
Mbenenge was due to take the stand this week before the Judicial Conduct Tribunal to help determine whether he is guilty of gross misconduct as a high ranking judicial official.
In the matter being heard before Judge Bernard Ngoepe, lawyers could not agree on whether gender expert Lisa Vetten should testify at this stage of the inquiry.
After a brief debate Ngoepe decided to allow Vetten to testify, although evidence leader Salome Scheepers admitted she had not received a summary report from the expert for the respondent to prepare.
Ngoepe said he would allow all sides to be heard even though it might take more time than initially expected.
'We are of the view that, rather err on the side of caution; rather allow evidence even though there's argument about its relevance, allow it nevertheless to be given,' he said.
After extended discussions in Ngoepe's chambers on whether Mbenenge's counsel would still call him to the witness stand, the postponement was announced.
Chris Oxtoby, a research consultant for Freedom Under Law, said Vetten's evidence would be relevant to '
He told the
Mail and Guardian
that
'It seems probable that he will argue that his interactions with the complainant were consensual. It also appears that he will deny some of the events, such as the allegation that he exposed himself to the complainant, and also that
Muzi Sikhakhane, SC, for Mbenenge, had argued during the first sitting of the tribunal in January that Mengo
In his ruling Ngoepe said he would allow Vetten to testify because he was confident that if the testimony proved irrelevant, Mbenenge's counsel would deal with it accordingly.
Sanja Bornman, a gender law and policy specialist at Thusa Consulting, said the tribunal has been lengthy and 'very formal with an atmosphere not always conducive to best evidence in sensitive cases like sexual harassment'.
Bornman told the M&G that sexual harassment is not an ordinary misconduct and to create 'a truly victim-friendly process that permits innovative protective measures for a complainant' may require an amendment of the rules.
'We have heard much about the power dynamics at play in this matter, and it is in the interest of justice to fully explore the socio-cultural and other factors that inform a person's power and ability to consent, or not, to sexual intimacy in a workplace context,' she said.
Oxtoby noted that although the case sets an important example that complaints of misconduct will be taken seriously, even if found guilty this did not necessarily mean Mbenenge would be impeached.
Bornman said although the tribunal will not create legal precedent as such, its findings will send an important message to the legal profession, the judiciary in particular, and the public at large.
'Whatever that message turns out to be remains to be seen, and it will undoubtedly be the subject of analysis for a long time to come,' she said.
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