Andiswa Mengo and the judge who could not read between the lines

Mail & Guardian

11-05-2025

Eastern Cape Judge President Selby Mbenenge. (Nelius Rademan/ Foto24/Gallo Images)
A case of judicial misconduct that experts say could have been resolved in six months has instead taken three years since the alleged sexual harassment of 37-year- old court secretary Andiswa Mengo started in 2021.
The proceedings resumed in May after an initial sitting in January, during which Mengo endured eight days of cross-examination.
She described the conduct she experienced from the judge as a persistent series of inappropriate comments, messages and an alleged incident of indecent exposure.
The hearing has garnered public interest because of the
The misconduct tribunal is of highly venerated Eastern Cape high court Judge President Selby Mbenenge, with close to 40 years in the legal fraternity,
Legal experts say the case has far-reaching implications for women's rights in the workplace and justice system with regard to the credibility of the subtle and measured responses Mengo employed to rebuff Mbenenge's advances.
Jeanne Bodenstein, chief executive of Thusa Consulting, which trains companies on sexual harassment policies, said women are socialised in South Africa's cultural setup to be obliging, particularly to older people.
'The truth is that women are doing this in their everyday lives, if not in the workplace, in public spaces or at home, and just about everywhere men and women mix. It's a skill that every woman sadly masters at a young age, because statistics tell us that women are often hurt and even killed for saying no,' she told the
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As a junior employee and single mother, Mengo would not want to be seen as 'problematic' or 'difficult' while interacting with the most senior person in the province's judiciary, added Bodenstein.
'There is just no way any woman in her position would risk their job by offending or angering the boss she has to see almost every day. The best she could do for herself was to avoid, hint at a no, and when all else failed, as it did, placate,' she said.
Mbenege is expected to use his day in the public hearing before the tribunal ends on 15 May to push back against Mengo's earlier testimony of disgust at the judge's in-person and WhatsApp advances.
While Mengo claims Mbenenge failed to read between the lines of her indirect rejection, Muzi Sikhakhane, SC, representing the judge, said her 'playful' emojis contradicted her statement of repulsion.
Digital forensic specialist Fascoi Moller testified this week that many of the
Wise4Afrika director Brenda Madumise says organisations need to have clear protocols of how to conduct communications after work hours.
Madumise told the M&G that women are often not sure how to react or respond when workplace contact crosses over to private life. She says while women don't want to appear rude, they later question whether they enabled the behaviour.
'That is the problem with this kind of thinking. When such harassment happens to victims they start to make the other person feel comfortable even with the intrusion,' said Madumise. 'You are more worried about the feelings of the other person more than yourself.'
After the Judicial Service Commission (JSC) ruled there was a prima facie case for an investigation, former chief justice Raymond Zondo said Mengo's complaint '
The public hearings are at stage four of the JSC process. If found guilty, the commission may
Evidence leader Salome Scheepers
Mengo's counsel, Nasreen Rajab-Budlender, has stressed throughout the inquiry
Mengo testified Mbenenge started showing interest in her at the office and subsequently sent sexually suggestive texts on WhatsApp.
Mengo said she tried and failed to make her displeasure clear at the suggestive texts, inappropriate comments at the office and the judge exposing himself to her in his chamber.
At one point he requested a half naked photo of her, which she rebuffed with wid- eyed emojis and followed up with questioning how he could say such things as an older married man.
On Tuesday, linguistics specialist Zakeera Docrat testified that text emojis were used for non-standard sexualised purposes to depict sexual acts and a means to sexually harass.
Bodenstein told the M&G that the increasing time lapse between Mbenenge sending messages and Mengo's answers seem to show that she grew increasingly avoidant.
Similar to in-person interactions, Bodenstein says women usually try to protect themselves with the least amount of offence to the perpetrator, especially if this is a senior official
Research and advocacy officer at Judges Matter Mbekezeli Benjamin said the public hearing has forced a reckoning in the legal profession and the judiciary about sexual harassment.
Benjamin says there has been robust debate over the past three months since the public hearings began, which he hopes will spur concrete action to deal with the underlying issues.
'There have been numerous informal discussions alongside formal discussions that have taken place at events such as the International Association of Women Judges' Conference in early April, at a workshop hosted by the Johannesburg Bar's sexual harassment committee in mid-April and at the National Association Democratic Lawyers' AGM in early May,' he told the M&G.
During Mengo's cross-examination, Scheepers highlighted that text messages were always initiated by Mbenenge while starting a neutral conversation, which eventually turned sexual.
Counsel for the respondent highlighted Mengo initiated a conversation where she wished Mbenenge a happy father's day, which she stated she sent to other older men at the office.
Although Mengo's responses were perceived as coy and ambiguous, her counsel have argued she was attempting to balance a thin line between rebuffing sexual advances while not souring the professional relationship
During Mengo's cross-examination, Sikhakhane stated the tone of the texts changed when she asked whether Mbenenge was prepared to pay — after the judge requested half naked photos.
Mengo says she was feeling annoyed and demeaned when he asked for the photos and this tactic was a way to deter him.
Madumise told the M&G it was surprising the judiciary has not had an
She said sexual harassment in the legal profession was most prevalent among candidate attorneys who depended on their principals to pass the bar and take on cases.
Madumise said Chief Justice Mandisa Maya, who is leading the draft of an anti-sexual harassment policy, should setup a platform to launch a complaint anonymously where witnesses are called after an investigation, which would encourage more women to speak out.
Benjamin said a written policy would also set up structures to assist in training and sensitising, rigorous investigation, support to victims and prosecution of perpetrators in a fair, speedy and transparent process.
The tribunal heard testimony from court secretaries at the Mthatha and Gqeberha high courts, detailing how Mengo's initial complaint was handled — contrasting it with the later, commissioned complaint filed by the legal adviser at the Office of the Chief Justice. This distinction forms a key part of the argument Mbenenge's counsel plans to pursue in the coming week.
Sikhakhane alleges Zondo has evidence that Mengo was coached to file a complaint as a way to damage Mbenenge's reputation.
It is unclear whether Mbenenge will testify in his own defence, said Benjamin, adding that although it is an inquisitorial process, the tribunal can subpoena any witness — including Mbenenge himself — to answer any question.
'In light of his unique position as a senior leader in the judiciary, we do hope that the judge will voluntarily explain his version of events and assure the public that his conduct is fitting of a judge,' said Benjamin.
Mengo has alleged that Mbenenge had a reputation for
'The boundaries between professional and personal lives are increasingly blurred and this requires work place policies and practices that clearly sets out boundaries as well as acceptable methods for communication,' said Bodenstein.
Mengo maintains she