Tribunal denies cross-examination in Judge Mbenenge's sexual harassment case

Sexual misconduct accused Judge President Selby Mbenenge will not be cross-examined by sexual harassment complainant Andiswa Mengo’s legal team after their application was denied at the Judicial Conduct Tribunal on Tuesday. 

Tribunal chairperson, retired judge Bernard Ngoepe, denied the application brought by Nasreen Rajab-Budlender on behalf of her client Mengo.

Further to Mbenenge, witnesses brought on his behalf will also not be cross-examined, Ngoepe ruled. 

The ruling was made in accordance with the Judicial Service Commission Act.

“After looking at the Act, we are of the view that such a right should not be granted. We say so for certain considerations, indicating that we strove to achieve fairness as far as possible. 

“This includes that we allowed legal representation for the complainant, albeit within limits. Secondly, we allow the complainant’s legal representatives to put questions to witnesses who had been called by the evidence leader.”

The ruling was made ahead of Mbenenge’s legal team presenting their case at the Tribunal.

Counsel for Mbenenge confirmed they would be calling four witnesses - the last of which would be the judge president himself. 

Earlier Tuesday, continuing her testimony, gender equality researcher Lisa Vetten maintained that when Mengo engaged in conversation with Mbenenge, in what she interpreted as sexting, it had come at a much later stage in their conversations after Mbenenge persisted with untoward chats.

Vetten continued her testimony to the Judicial Conduct Tribunal after the Tribunal resumed on Monday. 

Mbenenge is accused of sending Mengo untoward WhatsApp chats over an extended period, and in one incident, it is alleged that he asked Mengo to engage in a sexual act in his chambers.

Mengo lodged the complaints in December 2022.

During cross-examination, and seemingly aggrieved by the response submitted by Vetten, Mbenenge’s counsel criticised Vetten for her “long-winded explanations” and sympathetic approach to the complainant in her responses. 

The submission by advocate Muzi Sikhakhane was affirmed by a vigorous head nod of his client, Mbenenge.

Vetten submitted, during cross-examination by Sikhakhane on Tuesday, that Mengo had given quite different responses at different times. 

Sikhakhane probed Vetten on whether it undermines her decades of work when false claims are made.

Vetten confirmed that she has dealt with false claims of sexual harassment, but did not ascribe to the falsehood that “if one woman lies, therefore everybody else lies”. 

“When somebody lies about their house being broken into in order to claim insurance, we do not start to doubt everybody who makes an insurance claim. That is the attitude we should take with these matters. We should make it less exceptional.

“We should allow for the fact that yes some women will not behave well. And the fact that some women behave well does not mean that all women behave well,” said Vetten. 

Sikhakane said that Vetten had given sympathetic interpretations when it came to Mengo’s statements, but did not do the same for Mbenenge.

Vetten submitted that Mengo’s conduct did become ambiguous. 

“At times she does not say anything, then she does engage, then she is evasive. The respondent is pretty clear about what he wants… What I am saying is when you look at the times when she is saying ‘no, no, no’, and gives a response like that (referring to a sexting message), there is ambiguity,” said Vetten. 

Proceedings continue.

Cape Times