A tense cross-examination of an expert witness unfolded at Eastern Cape Judge President Selby Mbenenge’s sexual harassment Judicial Conduct Tribunal on Monday afternoon in Sandton.
Dr Lisa Vetten, a gender violence expert, testified in the matter brought against Mbenenge by Makhanda High Court judges secretary, Andiswa Mengo.
The defence counsel, advocate Muzi Sikhakhane, questioned Vetten’s objectivity and analysis, highlighting issues of bias and omission in her expert testimony.
This occurred after Sikhakhane accused Vetten of omitting critical information that contradicted her conclusion that Mengo was not an active participant in the WhatsApp messages exchanged between Mengo and Mbenenge.
Vetten, addressing the core allegations, emphasised the importance of respecting boundaries.
“The complainant [Mengo] said no numerous times. We always tell women to be assertive, and when they say ‘no’, it’s still not good enough. If somebody has told you no, why do you continue to persist?” she stated.
Engagement not implying consent
She further said Mengo’s prior engagement in sexual texts did not imply ongoing consent.
“The fact that she engaged in sexual behaviour once [does not mean] she was in perpetual agreement for future sexual interactions. People change their minds; she didn’t sign an agreement that she was going to interact the same all the time.”
However, Sikhakhane challenged Vetten’s impartiality, questioning whether her role as an expert witness was influenced by sympathy for the complainant [Mengo].
“You told this tribunal that you’ve testified as an expert before. And you didn’t do that as a supporter of someone?” he asked.
Vetten confirmed.
“An expert should provide a ‘frank, honest, objective opinion’ and analyse matters within their expertise; do you agree?”
“Yes, I agree,” Vetten responded.
The defence pressed further, arguing that an expert’s credibility relies on transparency.
“Do you agree that an expert shouldn’t omit things that they think may not be in line with your interests?” Sikhakhane asked.
Vetten concurred.
Sikhakhane argued that Vetten’s selective omission of certain details undermined her reliability.
“An expert witness who omits large chunks of information that are not consistent with the conclusion she wants to draw cannot be trusted. An expert that is sympathetic to a particular litigant and cherry-picks what they want cannot be trusted by the tribunal. We are not experts here; you are,” he added.
Vetten acknowledged the focus of her analysis.
“I was asked to work on a sexual harassment complaint here, so that’s what I focused on.”
Sikhakhane highlighted specific omissions.
“Do you agree that you omitted what Miss Mengo said?”
“Yes, because I couldn’t go through everything as time worked against us. I was asked to hurry up,” she responded.
“But you don’t have the same reluctance when it’s messages from the respondent?”
Vetten accused of bias
Sikhakhane accused Vetten of deliberate bias, pointing to her choice of what to omit as a calculated decision.
“That choice you make of what to omit is a deliberate choice. You could have chosen where she said, I want you to continue desiring me so that you come; you are strong. What I think is that your theory is that the respondent acted inappropriately.
“You are not here to sympathise with a complainant. It’s not wrong to support one side, but it’s important that you disclose it; as an expert and an intellectual, you have to be honest and declare your bias,” he argued.
He pressed Vettel directly.
“You’re biased, Lisa Vetten; you’re in favour of the complainant. I’m asking you honestly, as someone whose work I respect, do you think an intellectual who has not read up on everything that is before this tribunal, questioned everything, and critiqued all information should be trusted?” Sikhakhane asked.
Vetten, however, said her analysis is based on the WhatsApp texts between the two.
Sikhakhane challenged the completeness of her work.
“Your analysis doesn’t meet the subject. Do you agree with me? We cannot take it into account because it doesn’t speak to the other side of the respondent.”
“I didn’t have the JP’s version; I didn’t have sight of the cross-examination,” Vetten clarified.
“You’re unhelpful; would you agree? Having not been given material sufficient for you to make an objective analysis, I’m putting it to you that your analysis is deficient. There is something missing in your analysis,” Sikhakhane stated.
