By RAY HARTLE
On Tweede Nuwejaar (second New Year), January 2, 2023, I received a call from Mthatha attorney and member of the Judicial Services Commission Mvuzo Notyesi, clearly seeking to dissuade me from publishing a news article he believed I was researching about Eastern Cape judge-president Selby Mbenenge and which, if published, could cast the judge in a bad light.
Rumours that Mbenenge was facing an allegation of sexual harassment emerged the month before, just as South Africa was beginning to shut down for the festive season. They appeared to be fuelled by WhatsApp status messages posted by Makhanda high court official Andiswa Mengo.
It was not immediately clear to me in December that a formal complaint against Mbenenge had been lodged by Mengo with either the Judicial Service Commission or the Office of the Chief Justice. I understood that some EC judges were approached to form part of a group that potentially would mediate an informal discussion between Mengo and Mbenenge. I wondered about the procedural merits of such an intervention.
By then, I had spent most of the previous year sifting through far-reaching allegations which had come to me regarding Eastern Cape high court officials.
On January 2, ignoring the pull of Cape Town’s Tweede Nuwejaar (Second New Year) celebrations, I started working to verify the information I had received in December, including trying to contact judges with knowledge of the latest development.
A short while after these calls, I received the call from Notyesi, whom I knew as a prominent member of the National Association of Democratic Lawyers (Nadel), who has held leadership positions within the organised attorneys’ profession, both within the Eastern Cape and nationally.
He and I had a reasonably amicable professional relationship over the years.
As a journalist, I sought his representative or personal insights on articles I was researching, including the language policy in the country’s courts.
In 2022, I covered his ambitions for appointment to the bench in a comprehensive face-to-face interview in Mthatha which ran in the Mail & Guardian see here. The article also dealt with a claim that he wields an enormous power in the city’s high court, that cases go his way and judicial appointments are influenced by him. At the time, Notyesi brushed away the claim as a slur on the independence of the judiciary and said: “I’m just a lawyer going to court, just like any other person.”
He has been a member of the Judicial Service Commission at various times, as an attorneys’ representative. He was appointed as one of the two official spokespersons for the JSC in 2022 but we had not interacted in that context.
Under different circumstances, it might not have been unusual to get a call from Notyesi on “Tweede Nuwejaar”. But now I was wary, given the slate of calls about the Mbenenge matter that I had worked through already. I immediately considered that Notyesi might have got wind of my queries.
I do not have an electronic recording of our cellphone exchange, but as soon as the call ended, I made contemporaneous written notes of the conversation.
His initial monologue was rambling, torturous. He told me he knew about a story – and knew that I also knew about the story. (At no point in our entire conversation did we determine or agree what the story was, that we both apparently knew about.
Continuing in that vein, he said he was speaking to me as a friend, almost like a relative. I joked that perhaps I was that difficult uncle staying in the back room of the homestead whom everybody ignored when they visited for the festive season.
As someone associated with the JSC, he said he never responded immediately to claims that surfaced around the commission, waiting until he received the full picture through the unfolding process. He suggested that it might be best for me to wait until the full picture emerged at some point about the story, he believed, I was researching.
He said that “the current JP” Mbenenge was doing “a good job, that he had promoted transformation, but that his habit was to treat people like school children, which perhaps rubbed up the wrong way, some of his colleagues on the bench.
Notyesi then launched into a discussion of what he termed the “unity of the division”. He complimented me on my writing on the courts in the province, especially that I had highlighted the importance of the court rationalisation process. This writing, he said, expressed the importance of the unity of the division and I really should continue to write in this way, rather than presenting the EC as a divided division.
He said he had supported the recommendation more than a decade ago to appoint Belinda Hartle, my wife, as a judge to the Eastern Cape’s Bhisho bench, “even though she is white”.
Similarly, he said he supported other white women judges, referring to Judge Igna Stretch in Bhisho, the “two white women judges who retired in PE”, presumably meaning retired Gqeberha judges Irma Schoeman and Elna Revelas, and “the academic from Rhodes” University, whom I understood to be Professor Rosaan Kruger, who acted in the EC high court and unsuccessfully applied for a permanent position.
I now was fully alerted to the reason for Notyesi’s call. And deeply disturbed. I had no doubt that he had been informed by one of the people whom I called earlier, that I was investigating the Mbenenge story.
I understood Noteysi to be saying that my query about an allegation of sexual harassment against Mbenenge was not well-received by whomever had been alerted to it. And should I continue to research the Mbenenge matter and proceed to publish a news article which had a negative vein about Mbenenge, it would be an affront to the way he, Notyesi – and perhaps others – ostensibly supported these white women applicants for the bench in pursuit of a transformation agenda for the judiciary.
I had never previously had a discussion with Notyesi about any member of the Eastern Cape bench.
I am proud of all Belinda’s professional achievements. But I also have never spoken with Notyesi about anything that relates to her interview for a permanent appointment to the bench or her work as a judge subsequently.
None of the women Notyesi referenced was a source for the news report I was researching.
It’s also interesting that Notyesi’s comments did not incorporate white male members of the Eastern Cape bench. Apparently, only this cohort of white women judges – presumed beneficiaries of the judiciary’s transformation agenda – had something to fear if a news report about a sexual harassment complaint against Mbenenge was published. I wonder why that is so.
There is no public record of how members of the JSC voted at the end of the respective interviews for permanent appointment to the bench of the women Notyesi named. And it is also not clear that Notyesi himself was a member of the JSC at the time of the interviews of any or all these women candidates.
I was keen to end the call because of his disturbing monologue. I allowed about six weeks to pass before calling Notyesi again on February 15 2023, stating that I wanted to confirm our previous conversation. I related what I understood to be the thrust of his earlier comments.
He said that he “would not like to be involved in controversy”.
When he called me in January, “we were just talking broadly about issues”.
“One guy said to me, be careful, don’t talk to journalists like this.
“I don’t treat you as a journalist at all. Whatever I said, whatever you construed it, it was not binding to you or me. It was not something we should make a statement on. That would cause a … stir. What authority do I have? I was just talking to you like I would any other day… I would like to treat it that way…”
He said an attorney in East London had pointed out to him certain controversial social media posts, and the danger that “these things will go to journalists”. He told the attorney he would call me to find out if I knew anything about this issue and whether it was likely to be covered by the media.
“I wouldn’t like even the reference to our discussion on previous occasions… It would put me in a precarious situation. I don’t want to be involved. I am [a member of the] JSC.”
For many months I was unsure how to respond to Notyesi comments to me. I was astounded at the temerity of his statements about white women judges. There was an implicit threat in his utterances – even if they were couched in the benign, Constitutionally-defined language of transformation, and even if I was not being asked to participate in a quid pro quo deal.
If I wrote about Mbenenge’s difficulties, my wife, and presumably other white women judges, would face some kind of backlash from Notyesi and whoever was collusively grouped around him.
I eschewed writing about our two telephone calls because I wanted the focus of my reporting to be on what I had uncovered – a complaint of sexual harassment against Mbenenge – rather than on my personal offense at Notyesi’s comments.
I wonder what power Notyesi thought he had over the judiciary’s accountability system, at the time of his call to me, and perhaps still thinks he has, that he could so easily make these careless statements.
And I wonder what power he believes he has over me.
Fact is, I continued to work very hard as a journalist to bring to the public some of the information about the Eastern Cape judge-president which warranted publication.
Since that call, I have wondered often about a potential conflict of interest between Notyesi’s role as a member of the JSC and his advocacy on behalf of Mbenenge.
I avoided contact with Noteysi until I had to speak with him recently, on the JSC’s decision not to suspend Mbenenge, when his co-JSC spokesperson Advocate Sesi Baloyi was unavailable to comment. Towards the end of our conversation, I asked him if he participated in the commission’s deliberations, and if he ought not to have considered recusing himself.
He denied that our Tweede Nuwejaar conversation was as I have characterised it here. Instead, he said it was off-the-record (not once in that discussion did Notyesi state or suggest that it was off-the-record), that he was speaking as a Nadel member and not a JSC commissioner (this role definition was never stated), and that he had clarified his intentions in the subsequent conversation a few weeks later. In my view, his attempt at clarification was a mere walking back of his intentions.
He also denied that he was a confidante of Mbenenge as I suggested he was. While he knew almost all the Eastern Cape judges “as people”, his relationships with them did not create the potential for a conflict of interest. It was thus unfair to suggest that he ought to have recused himself from discussion of Mbenenge’s suspension pending the tribunal decision.
“I go there [to JSC meetings] as an independent-minded person. If you were to read the record, [you would see that] I am not a supporter of the JP. [Anybody who suggests that I would favour the JP] would be completely wrong.
“I can assure you that I participate in the JSC as an independent member. And I will never stop you from investigating any member of the JSC including the JP. And if you perceive that I was trying to do that, I was not doing that. I do not recall myself as saying that I knew you were investigating a story.”
- Recently, the Mail & Guardian also questioned whether “it was proper for Notyesi to speak on this [Mbenenge complaint] matter, given that as an attorney, he has had a long professional relationship with Mbenenge”, and also instructed him in a number of cases while Mbenenge was the most senior advocate at the Mthatha bar.