#TheMbenengeMatter – The Findings of the Judicial Conduct Committee

The Judicial Conduct Committee who met on June 28 2023 to consider the sexual harassment complaint against Judge-President Selby Mbenenge comprised judges Dumisani Zondi, Tati Makgoka and Nolwazi Mabindla-Boqwana, all members of the Supreme Court of Appeal.

In its ruling released on September 14 2023, the JCC found that the complaint “establishes a prima facie case, which if substantiated, is likely to result in a finding of gross misconduct”.

Given the “seriousness of the allegations”, the JCC considered it appropriate to recommend that the complaint be investigated by a judicial tribunal.

The JCC found as common cause between the parties that JP Mbenenge had made sexual advances towards complainant Andiswa Mengo.

However, beyond that fact, everything else appeared to be in dispute.

According to allegations by Andiswa Mengo:

  • Mbenenge sent her ‘unwelcome / unwanted’ messages beginning in 2021;
  • This included crude pictures and videos;
  • She responded curtly or not at all;
  • Mbenenge behaved indecently towards her in his chambers in Mthatha on November 14, 2022.

According to allegations by JP Mbenenge:

  • An indecent incident in Mthatha did not occur;
  • The exchange of messages between him and Mengo was consensual;
  • Mengo responded jovially or flirtatiously to his messages;
  • He cannot recall sending video of a sexual act.

On 20 November 2022, Mbenenge allegedly called Mengo into the judge-president’s chambers in the Mthatha high court and, pointing to his crotch, “said ‘do you see the effect that you have on me’. He then asked her ‘awufun’uyimunca’ [‘don’t you want to suck it]. He unzipped his pants and attempted to expose his erect penis to her, whereupon she ran out of his chambers”.

JCC Ruling

Mbenenge admitted the content of certain WhatsApp message exchanges with Mengo, but said that these exchanges were consensual. He denied that the November 2022 incident occurred.

The JCC ruling specifically notes that it did not canvass the detailed evidence of both parties but dealt “with their essence”. 

“It is common cause that the Judge President made sexual advances to Ms AM. The question is whether those were unwanted, and if so, whether the Judge President knew, or ought to reasonably have known that they were unwanted,” the JCC found.

The JCC noted that for a complaint of gross judicial misconduct to be sustained, wilfulness or gross negligence must be shown.

“Based on what he perceived to be jovial or flirtatious responses from Ms AM, the Judge President submits that his conduct was not wilful or grossly negligent and therefore the complaint must be dismissed.

“This is, however, not the end of the enquiry. The entire evidence must be considered, especially in view of the fact that, as the conversations developed and became more intense, according to Ms AM, she did not respond or when she did, her responses were short… Ms AM submits that the Judge President understood that she did not want to be intimate.

“The context and power dynamics within which the interactions occurred are also important considerations. The Judge President is the Head of the Court of the Eastern Cape Division and Ms AM was a Judge’s Secretary – a junior position in relation to the Judge President’s. Ms AM submits that as a junior member in this context she had to be mindful of how she navigated the workplace and rebuffed the Judge President’s advances in as polite manner as possible.

“Ms AM’s case is also based on crude pictures and video material which she says the Judge President sent to her. The Judge President denies that he sent the pictures concerned. He also states that he does not recall sending her sexually explicit video material. These are issues that require investigation, which this Committee is not mandated to undertake.

“Counsel for the Judge President submits that because the Judge President has, amongst other things, raised some factual issues which Ms AM has not rebutted, the complaint should be dismissed… We do not agree. The mere fact that there are some factual issues to which Ms AM has not responded, does not provide a sufficient basis for the dismissal of the complaint.

“The contours of sexual harassment are complex and in this case, they would be best resolved in an investigation where the parties’ versions would be tested through cross-examination and possibly expert evidence.”

The first alleged incident referenced by Mengo started with a passing quip by Mbenenge within the Makhanda high court precinct on 8 June 2021 that Mengo was “such a beautiful woman without a man”.

Later, in WhatsApp exchanges, he asked about her age, commented about her body and how well she had managed to keep herself younger than her age.

“She attributed it to exercising and good behaviour. The judge-president asked her how she could prove that she behaved herself well. Her response was ‘nguwe ofuna uyijonga [‘you are the one who wants to have a look at it] my part wud be giving you a task’.

“The Judge President then asked ‘Come out clean! How?’

“Her response was ‘A chance for u uba uyijonge [‘a chance for you to see if] … Then u determine what u r looking for.’”

Mbenenge asked her to send a few pictures “to serve as ‘halfway proof’ but she did not respond. He sent her emojis depicting eyes and said he was kidding. She responded by saying ‘cool’. He later commented on her WhatsApp status and asked her to reveal her upper body (khulu/a umntla)”.

Mengo continued to receive WhatsApp messages from Mbenenge. “Sometimes he would ask her to delete some of the messages,” the JCC recorded. Mengo’s silence at times “did, however not deter” Mbenenge.

“He would start chatting about work but as soon as he got her attention, he would change the topic to more sensual matters. He later sent her images which she considered crude, like one depicting different sex position styles, and another which she said depicted ‘a man muffing* a woman’ which he deleted shortly after sending them, and a video of a woman and a man having sexual intercourse.”

On 20 June 2021, Mbenenge allegedly “sent her a video of a woman lying on her back with a man on top of her”.

“On the same day, she sent the Judge President a WhatsApp message informing him that she was around East London, and requested that they meet and talk. He asked her if they could be intimate, ie whether they could have sex. She responded by referring him to a Bible verse… After that conversation, he said ‘Ok we may meet and just converse without going the intimate route’, which he deleted shortly after sending it, and asked if she only wanted to be friends. She did not respond to the latter question.”

A week later, the JCC records Mbenenge allegedly sent Mengo “an image of a penis, which he swiftly deleted, but not before she had seen it”.

“Her response was ‘uyanya’ [‘you are shitting’] to which the Judge President responded: ‘ugqiba kwam uchama’ [which Ms AM understands as ‘after I’m done ejaculating’] – [the Judge President understands the meaning as ‘after I finish urinating’].

“She states that she did not respond to this message. He then sent a picture of what she says was a ‘fit lady’ with only a t-shirt on, covering her private parts.”

On 20 November 2022, Mbenenge allegedly called Mengo into the judge-president’s chambers in the Mthatha high court and, pointing to his crotch, “said ‘do you see the effect that you have on me’. He then asked her ‘awufun’uyimunca’ [‘don’t you want to suck it]. He unzipped his pants and attempted to expose his erect penis to her, whereupon she ran out of his chambers”.

According to the JCC ruling, Mengo intended to tell Mbenenge that she was upset about this incident. When she requested to see CCTV footage which would show her entering and exiting the JP’s chambers, she was told the CCTV system was not working “and that everything had been wiped out”.

Mbenenge denied before the JCC any impropriety in his interactions with Mengo. He admitted the WhatsApp messages which Mengo presented to the hearing, but “had every reason to believe that his exchanges with her were consensual”.

“According to the Judge President, Ms AM’s responses to his messages would have a reasonable person in his position to believe that Ms AM did not find the messages to be offensive or unwanted, because her responses did not suggest someone who was in distress or uncomfortable.”

Mbenenge illustrated this point by referring to some messages. “The tone of these messages, especially her responses, he asserts, was playful, jovial and flirtatious,” the JCC stated.

He denied asking Mengo to expose her upper body. “His version is that, upon seeing Ms AM’s WhatsApp status picture, which depicted a halfnaked woman, he asked ‘who is this[?]’, to which she jovially responded, ‘It[‘]s me’, and inserted an emoji depicting a smiling monkey closing its eyes with its hands. He says because the WhatsApp status did not show the face of the person, he asked Ms AM to scroll down the picture so that he could see the face. She did not respond.”

Mbenenge denied sending crude pictures to Mengo, alleging that pictures depicting two people having sexual intercourse appeared to have been uploaded from the Internet. “They did not come from him. He cannot recall sending a video depicting two persons having sexual intercourse,” the JCC recorded.

According to the JCC findings, Mbenenge did not deny asking Mengo if they could be intimate after she told him she would be in East London. “Although she referred him to a verse in the Bible, which suggested that she was not amenable to his proposition, she nevertheless sent him an emoji of a monkey closing eyes with its hands, which he understood to be flirtatious. When he saw that she was not amenable to being intimate at that stage, he asked if she wanted mere friendship. Her response was a picture of a woman laughing, followed by a text with three emojis rolling with laughter.”

Mbenenge denied the alleged interaction between himself and Mengo in the judge-president’s Mthatha chambers. He relied on evidence by the acting deputy judge-president of the Mthatha court at the time that a review of video footage of the day showed Mbenenge arriving at, and leaving his chambers, but that the footage did not show Mengo entering the chambers.

* a form of sexual stimulation

#TheMbenengeMatter – The Findings of the Judicial Conduct Committee

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