In facing tough questions by counsel for Eastern Cape High Court Judge President Selby Mbenenge, a judge’s clerk who accused him of sexually harassing her, was repeatedly pointed to the fact that while she made damning allegations against him, she omitted to voice many of her responses to him.
Advocate Muzi Sikhakhane pointed out to Andiswa Mengo that while she claimed his advances were unwelcome and according to her amounted to sexual harassment, she on three occasions told the judge president “how cute he is.”
Thursday was the ninth day that Mengo was on the witness stand before the Judicial Conduct Tribunal which is testing her claims against Judge Mbenenge.
If found guilty of gross misconduct, he could face impeachment.
But the judge president is fighting back and his counsel is pulling out all the stops in a bid to prove that his exchanges with Mengo were mere flirting and nothing else.
Flirting is not an offence and it is not the business of the tribunal, Sikhakhane this week made clear.
Mengo earlier went through all the late-night WhatsApp exchanges between her and Judge Mbenenge - some which contained raunchy comments.
These, as well as claims by her that he had sent her a picture of his private part, were included in her complaint against the judge president.
She, however, admitted during questioning by Sikhakhane that she remained mum about some of her own responses to the judge president during their conversations.
One of the three responses in which she said he was “so cute,” was after he had updated his picture on his social media status.
In another, she told him “you are beautiful.” Another response she omitted to mention, Sikhakhane said, was when Judge Mbenenge suggested that they should meet up.
In her response, she told the judge president “You are distracting me. My blood is warming up.”
Another response she did not reflect in her complaint, Sikhakhane said, was when Judge Mbenenge sent her a message stating that she is “tender.” To this, she responded “very.”
She earlier testified that she was eventually so fed up with what she claimed was the sexual harassment, that she in December 2022 compiled an affidavit which contained her complaints.
In explaining the general misconduct process against judges, Judges Matter, an online judicial watchdog group, earlier explained that where a complaint’s affidavit is filed with the Judicial Services Commission (JSC), the Chief Justice (CJ) makes a determination whether it should be dismissed as frivolous or if it’s serious enough to lead to a finding of serious or gross misconduct.
The CJ then refers the complaint to the Judicial Conduct Committee (JCC), which conducts a preliminary hearing attended by both the complainant and respondent judge.
The JCC may make a recommendation to the JSC that a complaint be investigated by a Judicial Conduct Tribunal.
The JSC (sitting without members of Parliament) receives the JCC recommendation and, if accepted, establishes a Judicial Conduct Tribunal to investigate the allegations.
A tribunal investigates the complaint, including hearing witness testimony and cross-examination, and accessing documents. The tribunal then makes findings of guilty or not guilty and submits a report to the JSC.
The JSC may confirm a guilty or not guilty finding. It also decides, if a judge is found guilty of gross misconduct, to recommend to Parliament that a judge is impeached.
Parliament then debates the issue in the National Assembly. Two-thirds of the MPs (267 of 400) need to vote “yes” for a judge to be removed from judicial office through impeachment.
The Speaker must communicate the National Assembly’s decision to the president, who has to decide on the date of the impeachment.
The tribunal is meanwhile proceeding.