CCTV footage controversy in sexual harassment case against Eastern Cape High Court Judge

CCTV footage shown at the Judicial Conduct Tribunal for a sexual harassment complaint against Eastern Cape High Court Judge President, Selby Mbenenge, excludes one of the dates which relates to Andiswa Mengo’s complaint.

At the continuation of the Tribunal hearing on Monday, director of Facilities and Security Management at the Office of the Chief Justice (OCJ), Prabagaran Naidoo, confirmed that protocol to view specific footage was not adhered to and an application to view and peruse it had not been submitted through the correct channels.

The footage centres around the day on which Mengo alleged she was called to the chambers of Mbenenge, where he allegedly asked her to perform oral sex on him and he wanted her to see the effect she has on him. According to Mengo, she ran out of his chambers and left the office for the day. 

Naidoo said that he was contacted by Norman Mabuza who questioned him if it was correct for a judge to view footage without due process being followed.

“He indicated that a judge requested for footage to be viewed through the control room operator. What I said to him was that if a judge saw fit to view footage there might be something that may come in future so let us copy that and keep it on the hard drive and if anything comes of it, we have footage. I only requested the footage that the judge requested through him (Mabuza). 

“Usually an application would be made through my office stipulating the dates, time and exact reasons why the footage is being requested. Usually it would be attached to a letter, mandating a person in the department to conduct a sanctioned investigation. Alternatively if it is a SAPS case, a detective or any other person investigating from SAPS would provide us with a ‘cas’ number and request to view,” said Naidoo.

According to Naidoo, no such application for footage to be viewed was made or received by his office. 

Naidoo testified on Monday that footage, which was viewed by judge Bantubonke Tokota, was saved on his instruction. 

During cross examination, counsel for Mengo probed Naidoo on the dates of the footage submitted to the Tribunal. 

Naidoo confirmed that the footage available and which was requested was only for November 14, 2022 and November 16, 2022. It excluded November 15, 2022.

According to Naidoo, the storage of data on the CCTV drives is only available for 60 days before it gets overwritten, in the event that it is not specifically sought and saved. 

Asked if such footage would be available to be retrieved at this stage, he responded in the negative saying that it would be “impossible” to retrieve. 

Meanwhile, before the day’s adjournment, Mengo’s counsel, advocate Noreen Rajab-Budlender, raised an issue around calling witnesses to assist in Mengo’s case. 

Rajab-Budlender said the rules and regulations of the Tribunal were of a nature that Mengo was not allowed to call witnesses but this onus solely rests on the evidence leader to call witnesses and place evidence to the panel and to which both parties had to test the evidence of such witnesses.

Counsel for Mbenenge said the concern was raised very late during Tribunal proceedings but submitted they were ready to have Mbenenge testify on Tuesday. 

Tribunal chairperson, retired judge Bernard Ngoepe, is expected to make a ruling on these contentions Tuesday morning. 

Mbenenge presides at the Eastern Cape Division of the High Court and was accused by Mengo – a judge’s clerk – of sexual harassment, in which she alleges several disturbing communications from him.    

The Tribunal continues on Tuesday. 

Cape Times