Mbenenge tribunal: Judge viewed footage ‘without following proper procedure’

The tribunal into judges’ secretary Andiswa Mengo’s sexual harassment complaint against Eastern Cape Judge President Selby Mbenenge has heard that footage of the day of the alleged incident was viewed without following proper procedures.

The tribunal continued on Monday, and Prabagaran Naidoo, the director for facilities and security for the office of the chief justice, gave evidence.

In his evidence, Naidoo said court cameras are programmed to run or record only when movement is detected.

“For the most part, at night or when there is no picture in the frame, the camera will go on pause. Only when someone comes into the frame or there is movement — even if it’s a tree in the parking area — will it start to record,” said Naidoo.

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This footage is stored on digital video recorders found in the control room.

This is done to maximise data storage, which is a challenge because the courts can only keep data for a certain period of time.

“If you record data, you’d find that some courts will store up to 45 days, some 60 days, depending on the volume of storage we have. As it reaches the end date, it will override the first day and continue in that manner, so you’ll always have 60 days of recordings on your system,” said Naidoo.

“If we copy the data of the hard drive and keep it stored either on the hard drive as a separate file or in a folder, it will be preserved – that’s if we have details of the recording required.”

Mbenenge footage viewed

Mengo has accused Mbenenge of asking her if she was aware of how much effect she had on him, as he pointed towards the front of his pants.

She told the tribunal that there was a bulge in his pants and that he was fiddling with his zip.

“He asked me if I didn’t want to suck it,” she previously told the tribunal.

This incident is said to have happened on 14 November 2022 after he called her into his chambers at the Umtata High Court.

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The tribunal heard that footage of the day was viewed by Judge Bantubonke Tokota without following proper procedure.

“I was informed by the then security manager, Mr Norman Mabuza, that he wanted to know if it is correct that a judge views footage without the due process being followed, which is requesting that footage. I said to him that it was not correct,” said Naidoo.

“He indicated that a judge has requested footage to be reviewed through the control room operator. I told him that if a judge saw fit to view footage, there might be something that will come in future, so let us copy that footage and keep it on the hard drive, and if anything comes of it, we have footage.”

Footage procedure

Naidoo explained that for anyone to view CCTV footage, they would have to send an application to his office through the security manager, stipulating the exact date, time and reasons for the request.

He said he, however, did not receive any application for the Mengo footage to be viewed.

Naidoo was, in fact, informed of the request to view footage after the fact. Tokota allegedly informed Mabuza that he viewed the footage after being granted permission by the court manager.

However, Naidoo said this was not in accordance with protocol, and that there are no records of Judge Dakota’s request in this case.

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After being informed of what had happened, Naidoo said he requested the court download the footage viewed that day for safekeeping.

He only requested that it be transferred to a memory stick a year after it was viewed.

“The footage was downloaded onto a USB and couriered to me, and I retained it in the courier bag until it was collected by the secretariat,” said Naidoo.

Mbenenge footage tampered with?

When asked if it was possible to tamper with any footage on the court systems, Naidoo agreed.

“I think it is possible to tamper with the footage because once the footage is downloaded off the system, you can tamper with it because it becomes raw footage. When I requested the footage, the court manager was requested to be involved with the control room operator. I received it sealed, and I transferred it to the secretariat.”

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When asked if it was “reasonable” for the tribunal to assume that the footage shown during the proceedings was not the same as the one Judge Tokota viewed, Naidoo agreed.

“It is reasonable. The data that we downloaded was sent to me via a memory stick, and it was sealed. What we viewed was only the information on that USB. I’m not even aware of what exactly was viewed. In my discussion with Mr Mabuza, there was no detail of what exactly was being viewed. He was also not there, so he could not confirm that this was viewed.”

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