‘How will Mbenenge defend himself?’ Tribunal chair asks evidence leader during tense proceedings

Proceedings turned sour on Thursday as evidence leader Advocate Salome Scheepers insisted it was unfair for Eastern Cape Judge President Selby Mbenenge to expect timestamps of deleted messages between him and judges’ secretary Andiswa Mengo.

Scheepers continued with her cross-examination of Mbenenge, where she repeated Mengo’s allegations that Mbenenge had sent her explicit photos, while the judge dismissed them as lies.

The evidence leader stated that Mengo was not in a position to provide the panel with some information due to the deleted messages between the two.

Mbenenge: ‘When did it happen?’

“The only reason why we have those chats is because the complainant saved them on her phone; they were not found on your phone. Do you dispute that you ever sent the nude?” asked Scheepers.

“Correct,” responded the judge.

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“And you base these facts on the timestamp on the photo, and it does not correlate to any of the correspondence?” continued Scheepers.

“Yes, I would like to, at this point, afford you the opportunity, as I seek to answer your question, so that I provide a meaningful response, to refer me to the time and date at which this annexure was sent. I’ve the documents here; I will leave it to you to point me to them. The only way in which I can provide a meaningful answer, I believe, is when, as part of your question, point me to the date and time at which I’m said to have sent that annexure,” said the judge.

Scheepers continued to press Mbenenge.

“The complainant testified that she received more than one picture of this nature, as you heard the evidence. Due to the fact that so many messages have been deleted, and the time that has passed since the correspondence and us being here, it is possible that she could have made a mistake on when she received it. Is it true?” she asked.

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However, the judge insisted that the evidence leader provide him with the date and time the explicit photo was sent.

“So many messages have been exchanged between the two of you, it is unfair for her to remember when exactly she received it, because you have deleted messages,” said Scheepers.

‘Messages deleted’

At this point, the tribunal chair, retired Gauteng High Court Judge President Bernard Ngoepe, intervened and asked Scheepers if Mengo was unable to provide the date and time the explicit image was sent.

“The complainant is also unable; she cannot say,” responded Scheepers.

“So, how is he going to defend himself?” asked Ngoepe.

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“Chair, we have to look at her evidence, and all the evidence before the tribunal. The fact is that she testified she received it; the fact that she cannot pinpoint exactly when it was received is not the end of it. We need to look at the probabilities. She received more than one picture of this nature,” explained Scheepers.

“To say when exactly K8 [image] was received is unfair because the messages were deleted; she could not go back and trace exactly when it was sent because of the messages being deleted in the chats. Unfortunately, she did not save a screenshot where we could see the date. We don’t have that.”

‘Lies’

Although the tribunal eventually established the day the image was allegedly sent to Mengo, Mbenenge insisted that they provide him with the exact time it was sent.

“In light of what you are saying, I am saying to you, the persistence in saying I sent K8 is crystal lies and in the direction of being malicious, to the extent that in so far as you are putting that question to me, you yourself can’t put time,” said Mbenenge.

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“I am not able to provide any meaningful answer, but beyond that, we know that no such picture was found in my phone. I disagree with this version; I dispute what is being pursued against me in the manner that it is done. It is 20 June, according to the statement made by the complainant under oath. Insofar as the question is important, could I then be told when on the 20th of June, so that I can assist and provide an answer that will assist the panel arrive at a conclusion.

“In light of what the member of the panel has said, now it seems there is a date, then the time of the conversation on the day was 21:58, if I remember, so I don’t understand the correlation between 09:05 and 22:58.”

Mbenenge said the sexual harassment allegations against him were lies and denied he ever sent her explicit images of himself.

The tribunal continues.

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