Selby Mbenenge’s friend, a judge, watched the video footage at the heart of a sexual harassment complaint against him without following the correct protocol.
In 2022, Judge Bantubonke Tokota watched video footage of the sexual harassment complaint against Mbenenge filed by the judges’ secretary, Andiswa Mengo, without following the proper procedures.
This information was disclosed by Prabagaran Naidoo, a new witness who testified on Monday at the hearing of the judicial conduct tribunal looking into Mengo’s sexual harassment complaint against Mbenenge, the Eastern Cape judge president.
The hearing, which is expected to last until Friday, is taking place at The Capital Hotel, Empire, in Sandton, Johannesburg.
Naidoo, the director for facilities and security in the Office of the Chief Justice (OCJ), said he was appointed to the position on July 1, 2016.
He is based at the OCJ’s head office in Midrand, Johannesburg.
Naidoo told the tribunal that around November or December 2022, he received a call from Norman Mabuza, the then assistant director for security in the Eastern Cape Division of the High Court.
Mabuza’s phone call concerned Tokota watching a video of the Mthatha High Court’s chambers passage.
Application to watch footage not submitted
The video footage was shot between November 14 and November 15, 2022.
He stated that he was not aware of Mengo’s complaint or the information contained in the video when Mabuza reached out.
“Mr Mabuza informed me that a senior judge viewed video footage from the control operation room of the 14th and 15th of November 2022,” said Naidoo.
“Mr Mabuza told me that the judge wanted to have access to the footage, and he asked me if that is appropriate. I told Mr Mabuza that it is inappropriate for the judge to view the footage and request access to it without making an application to me.”
The proper process, according to Naidoo, is for someone who wishes to watch court footage to submit an application to his office along with the requested date, time, and justification for the request.
Tokota did not submit an application in this instance, according to Naidoo.
He claimed that it was against court procedure for Tokota to view the video without submitting an application and to ask to view the video without submitting an application.
Naidoo claimed to have informed Mabuza that Tokota would not be able to view the video.
He claimed to have instructed Mabuza to download, store on a USB stick, and forward the video footage that Tokota had seen to Naidoo’s Midrand office.
According to Naidoo, this was done because a judge (Tokota) had requested it and in case a case arose from the disputed video footage.
On Monday, during the tribunal hearing proceedings, video footage of the November 14, 2022, chambers passage of the Mthatha High Court was shown to everyone on a screen.
Mbenenge’s chambers are at the Mthatha High Court.
Unwarranted sexual advances
Mengo’s lawyer, advocate Nasreen Rajab-Budlender SC, told Naidoo that when Tokota viewed the footage in 2022, it was for November 14 and 15, 2022.
Rajab-Budlender told Naidoo that Naidoo asked Mabuza to download the footage for the period that Tokota viewed.
When she questioned Naidoo about why the tribunal only has footage from November 14 and 16, 2022, rather than November 14 and 15, 2022, he replied that he had no idea why.
Mengo claims in her complaint to the tribunal that between June 2021 and November 2022, Mbenenge made “unwarranted” sexual advances on her in WhatsApp chats and at work.
This is the first tribunal hearing on allegations of sexual harassment against a judge, and if Mbenenge is found guilty, the impeachment process may begin.
The hearing is presided over by retired Gauteng judge president Bernard Ngoepe, with assistance from advocate Gift Mashaba SC and retired Gauteng Division of the High Court judge Cynthia Pretorius.
The tribunal hearing continues.
