Advocate Nasreen Rajab-Budlender, representing judges’ secretary Andiswa Mengo in the sexual harassment case against the Eastern Cape judge president Selby Mbenenge, said the tribunal should carefully weigh the evidence before reaching a verdict.
The tribunal that is sitting in Rosebank, Johannesburg, resumed on Tuesday. This was after months since Mbenenge took the stand, giving his version of events.
Rajab-Budlender said sexual harassment is prevalent in society, especially in the legal industry.
“These proceedings have run on and off since January this year. And it’s not been easy for everyone involved,” Rajab- Budlender said.
Impact on sexual harassment
She further emphasised the broader importance of the hearing.
“The ruling in this hearing will have an impact on how sexual [harassment] cases are dealt with in future. This case is important and we cannot pretend that this is about two people, because it’s not,” Budlender said.
Rajab-Budlender reminded the tribunal that Mengo had repeatedly rejected Mbenenge’s advances.
“The complainant [Mengo] testified that she didn’t want to engage in the sexual conversations. There are about 13 times where she said ”no” to the respondent [Mbenenge]. Because she saw him as a leader and a father figure,” she added.
“His conduct was so blatant and abusive. This would be a dismissible offence. The JP is guilty of gross sexual misconduct. This tribunal has to consider that the respondent admitted to pursuing a sexual relationship with the complainant.”
Meanwhile, in his closing argument, Advocate Muzi Sikhakhane, representing Mbenenge, argued that the analysts brought to court by the evidence leader had conceded that the two parties involved may have had their own understanding of the emojis used in their exchanges.
Defence denies implications
He further stated that it is not for anyone to determine how flirting should be done. His client had been flirting with Mengo while pursuing a relationship with her.
“For such communication to constitute sexual harassment, it must be related to sex or gender. And it must be unwanted, persistent, serious, humiliating, and result in adverse consequences,” Sikhakhane said.
He added that the Judge President could not be accused of being evasive or dishonest.
“Not once did he deny wanting a romantic relationship, most people would have denied it. This case is about understanding what the conversation was really about. We may find their exchanges disgusting, but they were mutual. No one was forced, and it is irrelevant who initiated discussions about sex positions,” he argued.
Sikhakhane also questioned the complainant’s version of events, suggesting omissions in her account.
Complainant was also flirtatious
“If you look at the pattern, what she leaves out is telling. The parts where she herself is being flirtatious are not included. We maintain that the text messages do not reflect any unwillingness,” he said.
He went on to say that his client had suffered serious embarrassment over allegations that he sent Mengo a picture of a private part.
“He continues to be insulted over something for which no evidence was produced. We assert that no such image was ever sent. And the respondent never requested nude pictures from the complainant,” Sikhakhane said.
He concluded that the conversation in question did not meet the criteria for sexual harassment.
“No matter how disgusted some may feel about it, for those of us who consider ourselves perfect, the conversation simply does not qualify as harassment,” he said.
The findings of the hearing have been reserved.
