During the resumed Judicial Conduct Tribunal, gender-based violence specialist Lisa Vetten presented expert analysis on how workplace power dynamics influenced Andiswa Mengo’s reactions to alleged sexual harassment by Eastern Cape Judge President Selby Mbenenge between June 2021 and February 2022 :contentReference[oaicite:1]{index=1}.
Context of the Proceedings
Mbenenge, still serving as Judge President, stands accused of sending explicit messages and allegedly exposing himself to Mengo, who worked as a court secretary at the Mthatha High Court. The tribunal aims to determine if the conduct constitutes gross misconduct and warrants impeachment :contentReference[oaicite:2]{index=2}. After an April adjournment to hear Vetten’s expert testimony, the hearing resumed this Monday and will run until 11 July :contentReference[oaicite:3]{index=3}.
Scope of Expert Analysis
Evidence leader Advocate Salome Scheepers tasked Vetten with examining a trove of WhatsApp messages: 837 texts exchanged over 47 days—526 from the judge, 311 from the complainant :contentReference[oaicite:4]{index=4}.
Vetten, who has over 20 years of experience—from union-led workplace codes to government policy—applied the 2022 Code of Good Practice under the Employment Equity Act to interpret whether Mengo could meaningfully express refusal given the hierarchical context :contentReference[oaicite:5]{index=5}.
Power & Consent in a Judicial Setting
Central to Vetten’s argument was the concept that legitimate consent requires freedom to say “no” without fear of coercion. She noted how workplace hierarchy, formality, and institutional authority could suppress direct refusal :contentReference[oaicite:6]{index=6}.
She identified six strategies used by Mengo to indicate discomfort:
- Deflection: Changing the topic.
- Deviation: Giving ambiguous or incomplete answers.
- Deferral: Postponing conversations.
- Silence: Failing to respond.
- Accommodation: Placating without encouraging.
- Resistance: Saying “no” directly.
Vetten emphasised that these forms of “sophisticated avoidance” reflect constrained refusal in coercive environments :contentReference[oaicite:7]{index=7}.
Characterising the WhatsApp Messages
Vetten highlighted interactions abruptly shifting—from professional to personal—such as when Mbenenge requested nude photos. She noted his frequent use of the “angel halo” emoji immediately after inappropriate requests :contentReference[oaicite:8]{index=8}.
She concluded that Mengo’s hesitant and delayed replies demonstrated discomfort and reluctance—not mutual interest :contentReference[oaicite:9]{index=9}.
Defence Challenges Expert Objectivity
Mbenenge’s counsel, Muzi Sikhakhane, contested Vetten’s impartiality. He argued her interpretations were biased, sympathetic to Mengo, and ventured into psychoanalysis unsupported by objective case evidence :contentReference[oaicite:10]{index=10}.
The defence highlighted Vetten’s omission of certain texts suggesting Mengo’s active participation and questioned her analysis of cultural context, referencing possible norms in Xhosa courting :contentReference[oaicite:11]{index=11}.
Core Issues Before the Tribunal
Consent under constraint: Vetten stressed that consent must account for environment and power—so a non‑explicit “no” can reflect genuine refusal if hierarchy is stifling :contentReference[oaicite:12]{index=12}.
Reluctance ≠ romance: She asserted that Mengo’s late, neutral or evasive responses did not indicate consent, but coping strategies in an oppressive setting :
Defence’s rebuttal: Sikhakhane remains firm that Vetten’s testimony lacked neutrality and that Mengo’s actions possibly reflected consenting involvement, rather than harassment :contentReference[oaicite:14]{index=14}.
What Comes Next?
Following a heated cross‑examination, the tribunal will resume on 1 July with defence witnesses. Mbenenge’s legal team intends to call him and additional witnesses shortly thereafter :contentReference[oaicite:15]{index=15}.
Andiswa Mengo’s ability to cross‑examine Mbenenge was denied, as ruled by tribunal chair Bernard Ngoepe—citing procedural grounds under the Judicial Service Commission Act :contentReference[oaicite:16]{index=16}.
Significance of the Case
This tribunal is under close scrutiny for its potential to set precedent on consent and harassment in hierarchical workplaces, especially within the judiciary
The outcome may influence future policies around power abuse, workplace conduct, and the protection of junior staff across public institutions.
Further Reading
Explore our deep dive into power dynamics in South African courts or learn more about gender‑based violence prevention through the 2022 Code of Good Practice.
For tribunal livestreams and official documentation, visit the Judges Matter portal.
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