Eastern Cape Judge President Selby Mbenenge testified during cross-examination at the Judicial Conduct Tribunal, probing a charge of sexual harassment against him.
According to Mbenenge, he was intent on having a “romantic relationship” with judges’ secretary Andiswa Mengo.
The fact that he was married, was irrelevant, he added.
This emerged during cross-examination by evidence leader advocate Salome Scheepers, probing Mengo’s complaint that he sexually harassed her in a series of WhatsApp exchanges.
Selby admits to sending most of the messages, including sexually explicit emojis, but says it was a consensual relationship between two adults.
Late on Tuesday, Scheepers began her examination, setting out the role of a judge president and pointing out that he was expected to lead by example and reflect the highest ethical standards.
Mbenenge said he would have dealt properly with any unbecoming behaviour of any judge in his division.
However, he said, it had nothing to do with the proceedings.
He said he was not an employer and was not bound by the Labour Relations Act. Furthermore, the judiciary had no code of conduct relating to sexual relationships in the workplace.
He said he had first become interested in Mengo when he spoke to her in her own judge’s chambers.
“I was just attracted to her mannerisms, how she spoke, and how she held herself. It was not mechanical. It was natural. It just happened,” he said.
Scheepers asked, “What did you want from her?”
He replied, “I wanted to explore the possibility of a romantic relationship which started off by flirtation.”
Scheepers asked, “This is not your first flirtation relationship?”
He said, “I won’t answer that. It’s not relevant.”
Persistence
He said in Xhosa culture, persistence “in courting” was understood to be negotiation and this had come from both sides.
Scheepers asked, “Did you ask her out for dinner? Did you buy her gifts? Instead, what we see is that within 30 minutes of your first conversation (on WhatsApp), you asked her to send you photographs.”
Mbenenge responded, “Yes. But there is a context: look at me, consider me and tell yourself what you want from me.”
He said the suggestion that he should have started with going out for dinner was a “Western context”.
“You do not ask her how she wants to be courted. You just negotiate. There is no stipulated approach. There is no book. I assumed there was consent.
“It doesn’t mean that because the complaint was made that it was unwanted.”
Asked if he knew the definition of courting, he replied, “It’s a relationship where people consider the possibility of being partners in due course”.
Scheepers then suggested that, as a married man, Mbenenge did not want a serious relationship with Mengo but a sexual relationship.
Mbenenge said his marital status was irrelevant to the case and “I urge you to keep away from it”.
“You are saying by virtue of the fact that a person is married, they are precluded from doing something. You are seeking to make a moral issue. I wanted a flirtatious relationship, with a view to eventually having a romantic relationship if that worked out,” he said.
He said it was only inappropriate for a senior person in an organisation to enter into a relationship with a junior staff member if there was harassment, not just flirtation.
Tribunal President Judge Bernard Ngoepe issued a stern instruction that the matter should finish this week.
He said the public was becoming weary of it and “we don’t want this to turn into the Senzo case”.
“We will sit until 10pm if necessary,” he said.
“Eurocentric perspective”
Earlier in his evidence, Mbenenge denied that there was any sexual connotation to the “peeled banana” emoji he sent Mengo during a WhatsApp message exchange in which he suggested they be intimate.
He repeatedly insisted that the emoji was meant to denote “something nice we could share, like a chocolate”, when they met up.
The first he had heard that it could denote a circumcised penis was when he heard the evidence from forensic linguistic expert Dr Zakeera Docrat.
“I would have had to study a degree in these things to understand that. I was simply saying when we met, I was going to share something nice with her – two people eating from the same plate. From my side, it has nothing to do with any penis,” he testified.
However, he conceded that he knew the sexual connotations attached to a peach and eggplant emoji he sent her later in the same WhatsApp exchange.
“I don’t run away from that,” he said.
Earlier, he said he had never considered himself a handsome man but had been flattered when, after he sent a picture of himself to Mengo, she had twice responded: “cute”.
He continued to give an almost forensic examination of the messages, insisting that he had never been rebuffed by her and her responses indicated “Ukumtsa” – translated from isiXhosa to mean “a pretence of shyness intended to be alluring”.
He denied sending her a picture of his penis. Menge claimed that she knew it was his because the pubic hair was the same colour as the grey on his head.
Mbenenge said the exhibit in question “K8” – which Mengo said she had screenshot before he deleted it – did not reflect that and had a timestamp at odds with her testimony.
“I did not send K8. That is my stance and it will forever be,” he said.
However, he appeared to gloss over the evidence in the WhatsApps in relation to this alleged exchange.
The messages show that she had firmly told him that while they should meet, there would not be intimacy.
After she said goodnight, he sent her a deleted message to which she replied, “jesu”.
He then said, “Why, put it this way? It looks delicious?”
He also sent her a message with an eye emoji, saying “yours please”.
He contended that while he could not remember what he had sent, it was probably a picture similar to one of a “cuddling couple” he had previously sent her. He had simply been asking her to send him one back.
Judge Ngoepe said Mengo, when she testified, had said it had made her feel “dirty”.
Mbenenge has also denied that he asked her for oral sex in his Mthatha chambers in November 2022.
He said he was gutted when the “private conversations between two consenting adults who had agreed to keep them clandestine” were exposed by Mengo through WhatsApp, some 11 months after their “sensual chats” had ended.
He added that the notion that his persistence was harassment was a “Eurocentric perspective, that does not appreciate my culture”.
“And I am putting aside that [at one stage during the messaging], she said ‘earn it’.”
Mbenenge said Mengo’s complaint was tainted by lies and embellishments, including the alleged incident where he asked her for oral sex.
First published by: African Insider
Compiled by: Tania Broughton
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