Wrap of Mbenenge tribunal: Judge awaits his fate

In perhaps one of the most contentious hearings against a judge, with witnesses contradicting each other, the Judicial Conduct Tribunal started the year with a hearing that seeks to determine whether Eastern Cape Judge President Selby Mbenenge sexually harassed the secretary for the judges, Andiswa Mengo.

The Tribunal, comprising Judge B M Ngoepe, retired Judge-President of the Gauteng Division of the High Court, Tribunal President, and Judge C Pretorius, retired Judge of the Gauteng Division of the High Court and Advocate G Mashaba SC, as a non-judicial member of the Tribunal, commenced in January and is expected to resume again in October.

Mengo’s accusations

Mengo lodged a complaint against Mbenenge, accusing him of sexual harassment after he allegedly persistently asked her to send him explicit images and also sent him his in exchange.

In her testimony, Mengo told the Tribunal she found these requests for pictures “annoying” and felt that he was forcing her to send them.

She accused him of sexually harassing her through messages on WhatsApp, inappropriate comments, gestures regarding her appearance, and another incident that occurred in his chambers in November 2022.

She also claimed he sent her an image of his penis, which was subsequently deleted on the evening of 17 June 2021.

The complainant told the Tribunal it showed “his private part with hair the same colour as his hair on his head”.

He also allegedly sent her pornographic pictures.

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Mengo has accused the judge of asking her if she was aware of the 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 reported to have occurred on 14 November 2022, after he summoned her into his chambers at the Umtata High Court.

Mbenenge’s defence

The judge has claimed that the sexual interactions between him and Mengo were consensual.

Mengo, however, told the Tribunal that she reciprocated Mbenenge’s sexual messages to “satisfy him in order for peace at the workplace”.

Mbenenge, the first senior judge in the country to risk impeachment for sexual misconduct, has also denied sending an image of his penis.

“In light of what you are saying, I am saying to you, the persistence in saying I sent K8 [penis] is crystal lies and in the direction of being malicious,” argued Mbenenge.

He argued that he was trying to pursue a romantic relationship, but there was no clear guide on how to do so.

Although he admitted to asking her to remove her jacket, he denied that the request was indecent.

“I wanted her to remove her jacket because I wanted to appreciate her appearance. It was obstructing my view of how she looked,” Mbenenge said, with hand gestures painting her figure.

‘Reinforcement’

The witnesses called to testify at the Tribunal muddied the matter, as some seemed to suggest that Mengo was a willing participant in the conversations, while others stated that she was not.

In May, forensic and legal linguist Dr Zakeera Docrat testified that some of the emojis used by Mengo in her conversations with Mbenenge suggested “agreement” and “warmth”.

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

She testified that the exchanges between Mbenenge and Mengo started professionally but slowly degenerated with the use of emojis to “convey sexual acts”.

Mengo sent a “monkey’s closing its eyes” emoji. Docrat said this emoji represents “reinforcement”.

“Reinforcement because she’s used it more than once, even though there’s no text. But based on the text chain that was unravelling, and in that instance, her shyness on her part, embarrassment.”

‘Not much mutuality’

In June, gender violence expert Dr Lisa Vetten testified that there was not much mutuality in the WhatsApp message exchanges between Mengo and Mbenenge.

“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 of who is initiating the conversation and who is more active in the conversation, and it gives you a sense of who is asking more often and 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.

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

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

Did he send explicit images?

Another witness, Dr Vincent Mello, in July questioned the format of some of the photos allegedly sent by Mbenenge to Mengo.

He was asked to assess the usage of emojis and the disputed pictures allegedly exchanged between the two.

Mello said some of the pictures were inconsistent with the WhatsApp format.

“Based on my analysis, it is clear that the photos are below the typing message area, and they depict as though the message was still being compiled, and possibly, it was a screenshot taken. A message that would have been sent would have had the ticks, but I didn’t see them as I expected. The photos are not consistent with the WhatsApp template or indicate that they were sent,” said Mello.

“The photo [of Mbenenge’s private part] cannot be confirmed if it was from WhatsApp since it is not consistent with the WhatsApp template or format. You don’t see the name, followed by a typing space.”

ALSO READ: Did Judge Mbenenge send Mengo explicit pictures? Expert testifies

‘He does it to everyone’

Another witness, Mbenenge’s former secretary, Zinhle Nqkayi, in July, told the Tribunal Mbenenge used to comment on everyone’s outfits at work, not just Mengo’s.

“It was in the morning, I think around teatime. One of the judges’ secretaries arrived in my office, and the JP [Mbenenge] was in his office at the time. The JP came out, and he stood by the door that interlinks our offices,” said Nqkayi.

“Mengo was passing by while the JP was having a conversation with Ms Gugushe, asking how she was. Mengo passed by and greeted me, and the JP called her, and she came into my office. The JP then uttered a statement, exclaimed and said, ‘What is it, big girl? Why are you wearing a curtain today?’ He then went further on to say, ‘Do you see how other children are dressed well?’ He was referring to Ms Gugushe and me as we were standing by my table.”

ALSO READ: Mbenenge commented on everyone’s outfits, not just Mengo’s, says former secretary

Advocate Griffiths Madonsela, for Mbenenge, asked Nqkayi: “Was it usual for the judge to raise such issues?”

“Yes, that is his daily talk. Yes, he is like that; he would even pass this comment to a lawyer who would be coming into his office. The first thing he will notice is how that particular person is dressed, even with me; he will notice when I walk into the office and ask me, ‘Haibo, big girl, are you awake? Why do you still seem to be dressed in your sleepwear?” Nkqayi responded.

The Tribunal will reconvene on 21 and 22 October 2025 for oral arguments.

After hearing all the evidence, the Tribunal will decide whether to recommend to the Judicial Service Commission (JSC) that Mbenenge is guilty of gross misconduct.