Did she mean it or not? Analysis of Mengo’s WhatsApp messages to Judge Mbenenge questioned

Eastern Cape Judge President Selby Mbenenge’s legal representative, Advocate Muzi Sikhakhane, has questioned gender violence expert Dr Lisa Vetten’s interpretation of the WhatsApp messages sent by the secretary for the Judges, Andiswa Mengo, to the judge.

Vetten took to the hot seat on Tuesday, when Sikhakhane cross-examined the evidence she presented on Monday.

Vetten testified on Monday on the conclusions she reached after analysing WhatsApp messages between the two.

The judge has claimed that the sexual interactions between him and Mengo were consensual, while the latter alleges sexual harassment.

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However, Mengo’s unclear responses, according to Vetten, were her way of evading Mbenenge’s advances.

Whose interpretation?

Sikhakhane differed with Vetten. He said her interpretation could be flawed as she did not interview Mengo prior to her analysis and testimony.

“One of your assumptions is that we should not believe at face value what she says; we must believe your interpretation of what she says. You made the choice to say even where her words say something else, we in this tribunal, must believe how you interpret,” said Sikhakhane.

Vetten said she had only offered an opinion which the Tribunal could either accept or reject.

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“Yes, your opinion is that we must believe you about what she means. The point I am making is that, yes, it’s for the Tribunal to decide. But you are the expert giving an opinion and all I’m saying to you is that, the assumption in your opinion is that, faced with words and phrases and statements from the complainant, you offered a different interpretation of what she said, sometimes the opposite. You called it deferring, even when she is saying something straightforward from her mouth.”

Mengo’s words vs actions

However, Vetten said Mengo’s messages to Mbenenge should be read in the context of her subsequent actions.

“The typical example you refer to, at the time she says, ‘will do’. If you take that at face value, she’s going to take a photograph, but she doesn’t do that. He asks her again and persists to ask for a photograph, which is not sent,” said Vetten.

“One way this can be interpreted is that when she says ‘will do’ or ‘I’m going to do something’ and she’s not doing it, it’s one of the situations where you tell people to placate them; ‘I’m going to do it,’ but you don’t. So, one must look at the words and the actions.

“The first time this happens, you take people at face value, but then you look at patterns and you see there is a pattern of saying one thing and doing another thing.”

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Sikhakhane, however, didn’t let up.

“All I’m saying to you is that, because you did not interview her, don’t you agree with me that the possibility that your interpretation and analysis of her intentions could be wrong?” he asked.

“I can’t rule that out,” was Vetten’s response.

“Her responses are at times ambiguous, sometimes she’s able to say particular things, and other times she isn’t. That is consistent with some of the experiences I had with other complainants. I don’t try to read myself into a situation. It takes enormous courage to actually come here, so that is to be admired. Sometimes, people may not have that initially, but it may come to them through difficult situations,” she continued.

Mbenenge and Mengo’s power dynamics

“So, it may not be entirely accurate that she is this child-like person who cannot speak her mind,” asked Sikhakhane.

Vetten said she was referring to the power dynamics between the two.

“When I mentioned child-like, it was not about speaking her mind, but rather about position and respect. It’s not necessarily a lack of courage. As we go through life, we learn that you don’t use F-words to your CEO. If we occupy certain roles in our lives, that is often how we are supposed to engage with each other. There are ways in which we can and can’t respond to each other, like when you said to me, I must not be sarcastic. You were telling me I’m not fulfilling the role of witness. That is my point, there are roles which shape how we are expected to behave.

“What I’m offering the Tribunal, and they can take it or leave it, is that I read from this how it can be interpreted based on my experience with other complainants.”

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On Monday, Vetten told the Tribunal that there was no mutuality in the texts exchanged between Mengo and Mbenenge. She said Mengo either gave ambiguous answers or avoided some of Mbenenge’s requests for pictures altogether.

“There was not much mutuality going on. Even though she did not respond to him, he seems to think there was something going on mutually there, that she was telling him what her favourite position was,” she said.