The sexual harassment hearing against Eastern Cape Judge President Selby Mbenenge resumed on Tuesday as both parties presented their closing arguments before the tribunal.
The hearing revolves around allegations by judges secretary, Andiswa Mengo, who accused Mbenenge of sending her sexually explicit messages and images through WhatsApp.
‘His version not credible’
In her closing argument evidence leader Advocate Salome Scheepers said Mbenenge’s version of events was not credible, insisting that Mengo’s testimony had remained consistent throughout the proceedings.
According to Scheepers, Mengo did not sensationalise the conduct; she reported exactly what happened.
“She was specific, crude and uncomfortable yet contained,” Scheepers told the tribunal. “Her reaction, her evident distress and her communication with colleagues supported her version of events.”
‘Humour used to deflect comments’
Scheepers said Mengo had used humour, including laughing emojis as a way to deflect from Mbenenge’s sexually charged comments, rather than encourage them.
“The laughing emojis displayed discomfort on Mengo’s side,” Scheepers said.
She further referred to testimony by Abongile Tshete, who said they became aware of the alleged harassment through Mengo’s WhatsApp statuses.
“This shows that the conversation did take place and Mbenenge asked him to ask for a meeting with Miss Mengo, but she declined,” Scheepers stated.
Expert’s credibility questioned
Scheepers also criticised the credibility of Dr Vincent Mello, an expert witness called by Mbenenge’s legal team, arguing that he was not qualified to analyse emojis.
“He conceded that based on the information before him, he was unable to track where the messages were from,” she said.
She dismissed Mbenenge’s claim that his messages reflected flirtatious behaviour and that he intended to pursue a consensual relationship.
“While the respondent [Mbenenge] alleged that he was showing flirtatious behaviour and wanted a relationship with the complainant, based on what he was saying on WhatsApp, that is far from the truth.
‘Worried about family finding out’
“He asked for his messages to be deleted because he was worried about his family finding out. Those are not the actions of a good man; it’s just a man who wants to cover his tracks,” she said.
She described Mbenenge’s communications as persistent sexualised communication and urged the tribunal to find him guilty of gross sexual misconduct.
“Her testimony was corroborated without victim behaviour. It is therefore respectfully submitted that this tribunal should find the respondent guilty of gross sexual misconduct,” she concluded.
During questioning, Retired Judge Bernard Ngoepe, who chairs the tribunal, asked Scheepers on whether the WhatsApp messages objectively reflected unwanted advances.
“If upon, objective reading the WhatsApp messages, they don’t convey a message of unwanted messages, what then?” Ngoepe asked.
“If you look at the messages, she doesn’t answer him clearly because she didn’t want [to engage],” Scheepers responded.
“You’re not answering my question,” Ngoepe further challenged.
However, Scheepers insisted there was a point where Mengo declined and quoted a Bible verse.
“Where there aren’t any Bible verses? The real question here is what do the messages convey, when you are reading them objectively?” asked Ngoepe.
Discrepancies highlighted
He also questioned the reliability of some aspects of Mengo’s testimony, highlighting discrepancies regarding the timing of events and her colleagues’ statements.
“Doesn’t it worry you that Miss Kutlwano Moretlwe said she left at 9pm but the complainant said she left after midnight? Does it not bother you that she cast Miss Moretlwe as lying?”.
Scheepers said there were some credibility issues on the side of the Mengo but maintained that they did not undermine the central allegations.
