ZELDA VENTER
THE Judicial Conduct Tribunal into allegations of sexual harassment against Eastern Cape Judge President Selby Mbenenge - the first of its kind in South African history - will all take place in open court after Judge Mbenenge, at the start of the hearing on Monday, had a change of heart.
President of the tribunal, retired Judge Bernard Ngoepe, earlier ruled that in the interest of justice, certain parts of the hearing will take place in camera. This included certain WhatsApp messages sent to the complainant, a judge’s clerk Andiswa Mengo, by the judge president.
At the start of the proceedings, his lawyer, Muzi Sikhakhane SC said his client now chose to have everything aired in open court. He said it was also more practical this way.
After consulting Chief Justice Mandisa Maya, Judge Ngoepe agreed to reverse his ruling and to rule that all proceedings will now take place in open court. One of the tribunal members, retired Judge Cynthia Pretorius, however, said she cannot understand why Judge Mbenenge at this late stage changed his stance.
Sikhakhane also indicated that his client wanted the tribunal to subpoena former Chief Justice Raymond Zondo to testify in the proceedings. Judge Ngoepe, however, said he will later need convincing to do so, as “this was not just for the taking.”
Judge Mbenenge faces the tribunal after complaints that he sexually harassed Mengo during 2021 and 2022 at the Grahamstown high court - both in person and via WhatsApp messages. It is claimed that he, amongst others, had sent her explicit pictures.
In her opening speech before the complainant took the stand, evidence leader Advocate Salome Scheepers said it is unprecedented in the history of South Africa, that a sitting judge is probed for alleged sexual harassment. “This has never been done before,” she said.
The tribunal has to establish, after listening to all the evidence, whether there is a prima facie case against Judge Mbenenge and report its findings to the Judicial Service Commission for final determination.
If Judge Mbenenge is found guilty of gross misconduct, this could result in his impeachment.
Scheepers, in her opening remarks, said Mengo will testify that she had to endure sexual harassment from Judge Mbenenge in multiple forms. These include via text messages, him commenting on her physical appearance at court as well as an incident in chambers.
Scheepers said Mengo was at the time one of the most junior employees at the court. Mengo will also testify that she made it clear that his advances were unwanted, but she also feared losing her job.
Scheepers said the tribunal must take into account that while Mengo was a junior employee, the judge president was in a position of power. She said the WhatsApp messages sent by the judge president will demonstrate a distinct pattern in his behaviour. It always started with work-related matters and then shifted to sexual advances.
Mengo, meanwhile, took the witness stand shortly before the lunch break, where she testified that at first, there were no problems between her and the judge president. But things soon changed.
Her evidence is proceeding.