‘Not much mutuality going on,’ says witness about texts between Mbenenge and Mengo

Gender Violence expert Dr Lisa Vetten testified that there was not much mutuality in the WhatsApp message exchanges between secretary for the Judges Andiswa Mengo and Eastern Cape Judge President Selby Mbenenge.

Vetten on Monday testified on the conclusions she had reached after analysing WhatsApp messages between the two and also Mengo’s evidence in chief.

She analysed WhatsApp messages from June to February 2022, which totalled 47 conversations.

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

“I looked at who initiated the conversation, how many conversations were sent by the Judge President, and by Mengo. I used that as an indication as to who is initiating the conversation, who is more active in the conversation, and it gives you a sense of who is asking more often, engaging more often. It gives you an indication of who is the more interested party. I counted 837 WhatsApp messages, 526 from the judge, and 311 from Mengo,” said Vetten.

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“On the very first time they texted, on 8 June, there were 77 texts from the judge and 52 from Mengo. Again, on 20 June, the judge sent 84 messages and Mengo sent 51. However, a distinct change begins to occur on 28 July. You can start to see the number of texts dropping off quite significantly and the period between them taking longer and longer, the complainant starts to respond less and less often, there are more and more days where she’s just not responding at all.”

Mengo’s responses to Mbenenge

One of the conversations includes Mengo telling Mbenenge to “earn” her explicit images in response to his request for them.

The two also discussed sexual positions, with Mbenenge asking her which one she preferred.

“I will go with whichever, but there is a word I like, ‘surprise’,” Mengo responded.

She also responded with emojis to a question on whether the two would be intimate.

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

“He was asking for things in addition to just texting. There was also sexting, where he would ask her about her favourite position and ask for videos,” said Vetten.

“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.”

Workplace sexual harassment

Vetten testified that workplace sexual harassment could be identified in several ways.

“Identifying sexual harassment as an umbrella term that relates to different types of conduct is important. It can be expressed in physical, verbal, non-verbal (such as sending videos) or creating an uncomfortable environment. It can also be in asking someone for a favour, give me this, and I will give you that.

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“In some instances, behaviour will need to be repeated and persistent for it to qualify as harassment. But there are some forms of behaviour which only need to be egregious and only need to occur once, like rubbing someone’s crotch.”

Sexual harassment could also be identified through repeated crossing of someone’s boundaries. “You said no or indicated a reluctance or unwillingness, and it keeps being ignored,” she said.

‘Power dynamics’

However, dealing with sexual harassment was not as easy as identifying it.

“One of the reasons sexual harassment occurs and why it is difficult to deal with is because of power dynamics, and one has to look at these very carefully to consider if someone was genuinely in a position to say no. Could they clearly communicate how they felt about the situation, could they tell somebody to stop?

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“For consent to be meaningful, it has to be genuinely given; otherwise, it is superficial. There are layers of power, so you could discuss someone’s line manager. In this case, as I understand it, Judge Mbenenge would not have been the line manager; nonetheless, the secretaries take instructions from judges. There are also questions of influence, even if somebody does not directly manage you, but they can influence your career progression; if that person carries a lot of status and credibility, who is likely to be believed? Who is seen as more credible? Whose word carries more weight?”

Vetten said while Mbenenge used emojis to ask for things from Mengo, she used evasion to avoid direct responses to his advances.

The tribunal continues.

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