Conversations Judge President Mbenenge had with secretary “reflect a grooming pattern”

An undeniable, clear power imbalance exists between the sexual harassment complainant, Andiswa Mengo, and the accused Judge President Selby Mbenenge, which he exploited despite her repeated resistance over a period of about 11 months. 

This was according to Mengo’s counsel, Advocate Nasreen Rajab-Budlender SC, at the reconvened Judicial Conduct Tribunal, where oral arguments are being heard relating to JP Mbenenge, who faces accusations of sexual harassment after Mengo filed a complaint against him.

Rajab-Budlender stated: “There is an undeniable and clear power imbalance between the complainant and the respondent. He exploited that imbalance to harass the complainant. To suggest otherwise would be to ignore not just the jurisprudence of the highest court but the views of gender experts and mostly what all of us who work in a court environment know to be true.”

Throughout the Tribunal hearings, the JP maintained that he had not pressured Mengo and that when his conversations with her via WhatsApp took a “flirtatious” and “sensual” twist, it was his efforts to court her.

In her submissions, Rajab-Budlender said sexual harassment is prevalent in society and in the South African legal profession, “it is more prevalent than the global average and that 43% of women in the profession reported experiencing sexual harassment while 25% have considered leaving or have left the profession” as a result of sexual harassment.

“We submit that in JP Mbenenge’s case, there is no circumstance under which it was appropriate conduct for him as a leader and judge to engage in the manner that he did with Ms Mengo. 

“I say in the manner that he did because there was a suggestion that there is nothing wrong with a judge having a relationship with a secretary, per se. In some cases, we were told that judges have married secretaries, but that misunderstands our argument. What we’re saying is that the manner in which this took place was inappropriate,” said Rajab-Budlender.

Turning to Mbenenge’s demeanour and conduct during the Tribunal, Rajab-Budlender emphasised that it was not easy for a subordinate to “stand up” to him. 

“This is not someone who is easy to stand up to. It may be easy if you’re a judge or senior counsel. But it is not when you’re a secretary,” said Rajab-Budlender, who, in her submissions, said she counted that Mengo declined the sexually charged conversations on 13 occasions. 

“There was a pattern in his chats with Mengo. It started with work, then suddenly switched to sexual conversations. There is a pattern of not taking no for an answer. Whatever she did, he did not leave her alone,” she said.

Tribunal evidence leader, Senior State Advocate Salomé Scheepers, said Mbenenge’s evidence was “riddled with improbabilities” and that the WhatsApp conversations showed “deeply troubling behaviour from a senior to a subordinate”. 

Scheepers said Mengo had continuously attempted to deter Mbenenge’s advances, but he ignored her when she used humour or silence to deflect the conversations. 

She added that Mengo made her early and consistent complaints and documented the conversations “without embellishing”.

Scheepers said the conversations that Mbenenge had with Mengo on WhatsApp “reflect a grooming pattern”. 

“When we go to JP Mbenenge’s evidence, we are confronted with a version that is riddled with improbabilities, evasions, and contradictions. His testimony, rather than rebutting Mengo’s account, only reinforces it. His rebuttal even brought a cultural form of flirtation, suggesting he was expressing interest in a manner consistent with Xhosa custom. 

“Yet when pressed about it, he could not articulate what the interest actually meant. At one moment, it was a flirtation and at another, it was a courting process,” said Scheepers.

Scheepers submitted to the Tribunal that Mengo’s version is credible and the allegations against Mbenenge amounted to gross misconduct and that his conditional apology, although belated, was recognition that his behaviour was inappropriate.    

During the Tribunal, Mbenenge maintained that he was “not pressuring” Mengo despite a bout of silence from her for five days and prolonged delays in responses to his messages.

While the matter is precedent-setting in that it is the first case in which a judge president is made to answer to allegations of sexual harassment before a Judicial Conduct Tribunal chairperson, retired Gauteng High Court judge president Bernard Ngoepe said that the outcome of this Tribunal hearing will not determine how other cases of sexual harassment in the judiciary will be handled. 

“Each case is adjudicated accordingly to its own facts. We are going to determine this case according to the law and facts before us. As for what the outcome will be, we don't know,” said Ngoepe.