#TheMbenengeMatter – Anonymous Letter Writer Highlighted Problematic Behaviour of High Court Officials

Chief Justice Held Claims To Be Unsubstantiated

Reporting on Eastern Cape Courts

JUDGES & JUDGMENTS

By RAY HARTLE

Two years after the Office of the Chief Justice was first asked if it had received an anonymous letter containing allegations of widespread, scurrilous behaviour by Eastern Cape high court officials, the OCJ has finally confirmed that it was notified in February 2022 of an “anonymous complaint” – but found the claims it contained to be “unsubstantiated”.

It is the first time that the OCJ – a separate organ of state to the Judicial Service Commission and which provides administrative and support services to the judiciary – has acknowledged the existence of the anonymous letter containing the raft of very serious allegations of sexual harassment and other inappropriate behaviours by Eastern Cape high court officials.

It stated on February 16 in a response to my repeated requests for information about the anonymous letter:

“The Office of the Chief Justice (OCJ) was notified on 09 February 2022 of an anonymous complaint. The allegations against and involving officials were assessed and found to be unsubstantiated. Following the assessment, no formal complaints were lodged by anyone mentioned in the anonymous complaint.”

 

The anonymous four-page letter, containing egregious allegations, was posted from Makhanda (Grahamstown) in November 2021, to my home address. I subsequently found out that many allegations contained in the letter were openly discussed in the high court corridors by distressed staff.

The letter is titled “Re: Gross Misconduct and Promiscuous Behaviour in the Eastern Cape Division”, and the writer starts by stating that they write the letter “with a heavy heart”.

The introduction to a four-page letter, posted to me anonymously from Makhanda, detailing high court shenanigans.

When I received the letter in my postbox, it was not the first time that I had heard claims of impropriety by officials within the high court precincts across the province. I had heard the occasional titbit of salacious gossip from people in the court system or the legal profession, but nothing which I believed necessitated my further investigation.

I will not repeat the details here of the allegations contained in the letter, as they remain defamatory in the absence of clear, independent verification, but they point to questionable behaviour by a number of court officials, from lower ranks to the top provincial echelons, covering sexual harassment and grooming, phishing, consensual and quid pro quo sexual relationships between officials, manipulating staff appointment and procurement processes, bullying, abuse of office, and favouritism.

The unknown writer’s commentary on the “appalling conduct” was sharp and angry, saying staff were “tired of working under these circumstances”, with “selfish men” in senior positions taking advantage of vulnerable and desperate women in junior ranks.

“We are dealing with rape, statutory rape cases every day in these courts, but we don’t see rapists under construction right in our offices.”

The writer expresses the hope that “a commission or committee” would be formed to probe all that had happened within the high court system. At that point, messages proving certain allegations would be made available to those conducting the probe.

Some of the allegations were clearly true, and were openly discussed among high court officials in the various court precincts across the province, and by some judges in their private social interactions. 

It was clear to me that the anonymous writer was very well-informed of the issues which occupied the attention of the majority of high court managers and staffers.

Some officials were extremely traumatised when they spoke with me of their treatment by senior officials. In my view, the allegations warranted an official investigation to ascertain whether they could be substantiated.

Some of the issues raised were relatively non-controversial but pointed to criminal acts by staff – such as the Makhanda court usher who pretended to be a lawyer and extracted R10,000 in cash from two women who had come to the high court seeking legal assistance, or the poor quality of the R100m refurbishment of the Mthatha high court which resulted in a secretary being injured when ceiling boards fall on her as she worked at her desk. Judges spoke to me about water damage in their chambers in the refurbished court building.

In another matter, Eastern Cape Judge-President Selby Mbenenge was criticised by the anonymous writer for having re-deployed now-deceased Mthatha secretary Nolutando Kona from her post as secretary to Judge Lindiwe Rusi, to being a pool secretary working with acting judges. This was effectively a demotion which, Kona told me, had deeply affected her. The incident was dismissed by then OCJ spokesperson Nathi Mncube who said secretaries were appointed to vacant positions and not to specific judges. He said it was usual for the JP and the judge concerned to be consulted when a secretarial vacancy was filled.

In the months after receiving the letter, I made calls to, and submitted written requests for information to officials in the Office of the Chief Justice (OCJ) and the judiciary, within the Eastern Cape and at the national head office.

Most people were not willing to speak with me but those who did provided me with information which I regarded as sufficient to warrant further investigation by the authorities. At other times, I had the phone slammed down on me or people simply did not answer my calls or messages.

In February and March 2022, I specifically sent queries to OCJ officials nationally regarding the letter, including sending an email query to OCJ secretary-general Memme Sejosengwe through her executive assistant Desmond Moekoa. No response was received.

But at least two sources in the province informed me at the time that officials from the OCJ head office in Midrand met with women who had been named in the letter to ascertain if they were ever subjected to sexual harassment. It appeared to me that none of the ostensible victims had elected to submit a complaint of sexual harassment against anybody. One women

Later, it was confirmed to me that at least two women officials had been the target of sexual harassment. One confirmed to me that she met with the head office officials and told them of her experience of sexual harassment but declined to submit a formal complaint about it, fearing victimisation.

Simultaneously, EC director of court operations Denim Kroqwana warned staff that sexual harassment in the division was rife. “Surprised” staffers also confirmed to me that sexual harassment workshops were convened shortly afterwards.

Because of the generally salacious and potentially defamatory nature of much of the letter’s content, I did not share the contents with anyone, beyond the editors I was dealing with at the time and my attorney.

I was unable to convince editors that the allegations merited publication. I was forced to step back from my investigation and concede that I could not bring the story into the public sphere.

In December 2022, I was told that a formal complaint of sexual harassment had been lodged against judge-president Selby Mbenenge by Makhanda official Andiswa Mengo. It was not clear to me which of either the Office of the Chief Justice or the Judicial Service Commission had been the recipient of the complaint.

On February 19, 2023, the Sunday Times published my reporting on Mengo’s complaint against Mbenenge, officially lodged with managers in the Office of the Chief Justice (OCJ) in the Eastern Cape and at the head office in Midrand, Gauteng. The gist of her complaint was a series of face-to-face and electronic exchanges she had with Mbenenge in 2021 and 2022. Screen shots from her cellphone of some of these exchanges, reflecting racy texts and images Mbenenge allegedly sent to her via WhatsApp, were also published on social media. 

Almost another year would pass before an opportunity arose to revisit the anonymous letter when, on November 20 2023, Eastern Cape director of court operations Denim Kroqwana told OCJ EC colleagues in an email that he had seen the anonymous letter as early as the beginning of 2021.

“I have been asked whether I have seen the anonymous letter doing rounds. My answer is yes, I first saw it about a year, ten months ago… Colleagues who were interviewed by the media and the department back then please be my witnesses.”

The period of one year and 10 months establishes the moment when Kroqwana would have seen the letter as February 2021. By highlighting that “colleagues who were interviewed by the media and the department back then [must] please be my witnesses”, Kroqwana also established that he had seen the anonymous letter within the period that I had been contacting court staffers and conducting interviews with officials to verify the contents of the letter.

Kroqwana’s admission to his colleagues caused some consternation. An email thread which I have seen has colleague Unathi Sogoni asking Kroqwana probing questions about what action he took after he saw the letter and “were there investigations to that effect?”

Kroqwana’s response to this colleague is not known. But if he had alerted his OCJ superiors about having come across a copy of the anonymous letter in 2022 already, it does beg the question what steps were taken to validate and address the letter’s serious allegations. Or, perhaps, the letter first came to the attention of OCJ head office managers who informed Kroqwana about it.

The confusion over whether or when the OCJ had seen the anonymous letter, and exactly what it did about the document could easily have been clarified early in 2022.

Instead, armed with Kroqwana’s admission late last year to his colleagues that he had seen the letter 22 months previously, I approached the OCJ spokesperson again on December 19 2023 asking if was the OCJ’s and the JSC’s respective positions that its officials were not aware of the anonymous letter in or about late 2021 or early 2022.

I finally received a response from the OCJ on February 16, which stated:

“The Office of the Chief Justice (OCJ) was notified on 09 February 2022 of an anonymous complaint. The allegations against and involving officials were assessed and found to be unsubstantiated. Following the assessment, no formal complaints were lodged by anyone mentioned in the anonymous complaint.” 

Either the OCJ was being deliberately obtuse in its responses to me, or it was genuinely incompetent.

Neither proposition casts the OCJ in a good light.

#TheMbenengeMatter – Anonymous Letter Writer Highlighted Problematic Behaviour of High Court Officials

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