Judge President Selby Mbenenge found guilty of misconduct, cleared of sexual harassment
Eastern Cape Judge President Selby Mbenenge has been found not guilty by the JSC tribunal of accusations of sexual harassment against him, levelled by a high court secretary, Andiswa Mengo.
Image: Office of the Chief Justice/ S Lioners
A Judicial Tribunal, appointed by the Chief Justice, has concluded its investigation into a sexual harassment complaint lodged by Andiswa Mengo against Judge President Selby B. Mbenenge of the Eastern Cape Division of the High Court.
While the Tribunal found no evidence of gross misconduct, gross incompetence, or gross incapacity, it did determine that Judge President Mbenenge was guilty of misconduct not amounting to gross misconduct, specifically for contravening Article 5.1 of the Code of Judicial Conduct.
The complaint, initially lodged with the Office of the Chief Justice (OCJ) and later reviewed by the Judicial Complaint Committee (JCC), alleged sexual harassment by Judge President Mbenenge.
The JCC, on September 14, 2023, recommended a full investigation by a Tribunal, citing a prima facie case that, if substantiated, could lead to a finding of gross misconduct.
The Tribunal, comprising Retired Judge President B.M. Ngoepe, Retired Judge C. Pretorius, and Adv. M.G. Mashaba SC conducted a new hearing, including the testing of parties' versions through cross-examination and expert evidence.
Key Allegations and Tribunal Findings:
WhatsApp Messages:
Mengo's complaint was largely based on numerous WhatsApp messages exchanged between the parties. She alleged these messages, described as "jocular, flirtatious and even salacious," were unwelcome.
Judge President Mbenenge, while admitting to sending WhatsApp messages, disputed sending or receiving certain disputed messages and pictures. He contended that an objective reading of the messages would show a consensual flirtatious engagement.
The Tribunal found that, with the exception of one instance, the flirtatious WhatsApp messages admitted and sent by Judge President Mbenenge were not unwelcome to Mengo.
This conclusion was based on several factors:
* Mengo's credibility was severely compromised due to inconsistencies in her testimony, particularly regarding two complaint statements.
* Mengo herself sent flirtatious and salacious messages, which she deliberately omitted from her complaint statement. She conceded this under cross-examination.
* Mengo queried Judge President Mbenenge when he deleted messages before she could read them, indicating an eagerness to engage.
* The exchange was "littered with a number of emojis rolling with laughter" from Mengo in response to Judge President Mbenenge's flirtatious messages.
Request for Intimacy in East London:
The Tribunal acknowledged one specific WhatsApp message from Judge President Mbenenge suggesting sexual intimacy in East London. This message was politely rebuffed by Mengo, and the Tribunal found that Judge President Mbenenge accepted this rejection.
However, the Tribunal noted that consensual flirtatious and salacious messages continued to be exchanged by both parties thereafter.
Mengo's claim that she intended to meet him in East London to tell him his messages were unwelcome was deemed not credible, as she could not satisfactorily explain why she didn't simply send a message or how she suddenly found the courage to confront him in person.
Alleged Office Incident (November 14/15, 2022):
Mengo alleged an incident in Judge President Mbenenge's office where he made inappropriate remarks and exposed himself. Judge President Mbenenge vehemently denied this. The Tribunal found no credible evidence to support this allegation. This was based on:
* Judge President Mbenenge's former secretary, Zintle Nkqayi, testifying she was in her office at the time and would have seen Mengo.
* The Visitors Laptop Register showing Mengo left before Nkqayi on November 14, 2022, contradicts Mengo's claim that the secretary had left for the day.
* CCTV footage of the relevant corridors for November 14, 2022, showed no recording of Mengo entering Judge President Mbenenge's office.
* A Tracker Report on Judge President Mbenenge's vehicle movements indicated he left the court at noon on November 15, 2022, making the alleged afternoon incident on that day impossible.
Disputed Pictures and Messages:
Mengo alleged Judge President Mbenenge sent her explicit pictures, including "an image of a man muffing a woman," a picture of private parts, and a naked leg. Judge President Mbenenge denied sending these.
The Tribunal found no credible evidence to support these allegations. Expert testimony indicated some pictures were screenshots not consistent with WhatsApp format, and that some alleged exchanges did not occur on the dates claimed.
Furthermore, a Digital Forensic Investigator confirmed that the disputed images were not found on Judge President Mbenenge's mobile phone.
Misconduct Finding:
Despite finding no gross misconduct, the Tribunal considered whether Judge President Mbenenge's actions contravened Article 5.1 of the Code of Judicial Conduct, which states: "A judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office."
The Tribunal found that Judge President Mbenenge's conduct amounted to misconduct because he initiated and subsequently conducted a flirtatious relationship with Mengo at a place of work and during working hours.
This was deemed "prejudicial to the effective and expeditious administration of the business of the court," contravening Article 5.1 read with Note 5(iii) thereto.
The Tribunal emphasised that this finding of misconduct, as opposed to gross misconduct, was based on:
* The absence of sexual harassment.
* The consensual nature of the WhatsApp message exchange.
* Judge President Mbenenge's reasonable belief that the flirtatious exchange was not unwelcome, given Mengo's own participation.
* The fact that the flirtation occurred between consenting adults.
* The agreement between the parties to delete messages, indicating an intent for privacy.
* The majority of messages being exchanged outside working hours.
* The JCC not being aware of Mengo's omitted flirtatious messages when they made their initial recommendation.
The Tribunal's report will now be submitted to the Judicial Service Commission for further consideration.
IOL