4 days ago
Tribunal hears Judge President Selby Mbenenge could not take ‘no' for an answer
Eastern Cape Judge President Selby Mbenenge was persistent in his demands for nude photographs from court secretary Andiswa Mengo, the tribunal has heard.
The mammoth Judicial Service Commission (JSC) Conduct Tribunal probing allegations of sexual harassment against Eastern Cape Judge President Selby Mbenenge heard expert evidence on Monday of his relentless persistence and harassment.
Mbenenge (64) communicated various demands, including for nude photographs, in 47 WhatsApp conversations with the complainant, court secretary Andiswa Mengo (41), it was revealed on Monday, 30 June.
The conversations have been entered as evidence and have not been contested.
On Monday, Dr Lisa Vetten, a renowned expert on gender-based violence and sexual harassment, interpreted the depth and extent of Mbenenge's workplace transgressions.
Advocates Musi Sikhakane and Griffiths Madonsela, for Mbenenge, have claimed the 'relationship' between the Judge President and the secretary had been 'consensual'.
Bible verses to ward off approaches
Mbenenge, who is also a pastor, was not even put off by a Bible verse, Psalm 1, Verse 1, sent to him by Mengo after he had suggested they physically meet.
Vetten set out how, before this, the Judge President had bombarded her with requests for photographs and had asked her 14 times to discuss her favourite sexual position, to which she did not respond.
Even a response by Mengo that her 'exhaustion was extreme' and that she was still at work did not deter her pursuer, testified Vetten. Mbenenge continued, after hours, to intrude upon her personal space, often late at night, sexually harassing her.
Defining future office life
While Sikhakane and Madonsela had objected to the late bringing of Vetten's expert testimony, the chairperson, retired Judge Bernard Ngoepe, allowed this.
Evidence leader advocate Salomé Scheepers and Mengo's counsel, advocate Nasreen Rajab-Budlender, have put up a gargantuan case which will define future workplace relations, depending on this ruling.
It will also highlight the responsibilities that come with status and control for men in positions of power.
Vetten clearly set out in no uncertain terms the definitions of sexual harassment in the workplace and the codes and norms that governed these.
She said that the 2022 Code of Good Practice on the Elimination and Prevention of Sexual Harassment in the workplace encompassed four types of contact and behaviour.
'This includes physical, unwanted, touching, rape, verbal (as in spoken) and non-verbal (in terms of sending pictures or creating a hostile work environment) and then quid-pro-quo, which amounts to coercion,' she said.
To qualify, she added, there needed to be a persistence about the behaviour.
'Jokes, whistling, persisting in asking someone out on a date. However, some egregious acts need only occur once, like the grabbing of a crotch, which is grossly offensive'.
In an 'ideal world', Vetten said, 'we should all be able to say no, stop, this makes me uncomfortable' and the code recognised that this was not always possible'.
Power matrix
One of the reasons sexual harassment was so difficult to tackle and deal with, said Vetten, was because of gender power imbalances, which needed to be carefully examined in each case.
'Was someone in a position to say 'no' to clearly communicate and tell someone to stop? In law, those kinds of situations do occur,' she told the tribunal.
She noted there was a difference between 'submission' and 'consent'. In the case of a rape when a victim begged her rapist to wear a condom, this could not be considered consent.
'One can say 'yes' because saying 'yes' might be less worse than two terrible choices – facing violence and a sexually transmitted disease'.
Also, consent to one type of behaviour did not necessarily imply consent to any other behaviours that followed, she said. Added to the mix were the swirling stereotypes of men and women in society, which exist and which have 'clouded thinking'.
'There is this idea that men and women have different sexual urges, men more urgent. The other idea that has developed is that men pursue, and it is up to women to say 'yes' or resist'.
We lived in a society which viewed men as more active sexually and women as 'far more passive, waiting for men to approach them'.
Active sexuality in men was recognised and admired, and the general idea was that men 'must persist because women are in need of a bit of persuasion is real'.
Gender inequality also manifested in a range of other ways, including who performed what work.
Workplaces were governed by codes of conduct, regulations and hierarchies which inform workplace structures.
'If you look at the CEOs, they will predominantly be men. Who is likely to hold what position, and what we associate with this, matters. A secretary might make tea or be on the service side, there to listen and carry out instructions.'
'This is why we have workplace law to determine who is overstepping their mandate. Workplaces in different industries have different norms, but they are highly structured.'
Saying 'no' to someone who is your senior 'is difficult', said Vetten. 'Then, if the person has a lot of status and credibility, who is more likely to be believed or seen as more credible? Whose word will carry more weight?'
Silence and evasion
Many of Mbenenge's suggestions and propositions were deferred or ignored by the complainant in an attempt to escape them. At times, there were even long silences.
Asked whether, in this instance, there had been a blurring of workplace boundaries, Vetten replied, 'Very much so. To begin with, contacting her after hours after their very first contact, which follows as a result of [him] seeing her earlier in the day with her child and asking about its father.'
This grooms her for further questions with regard to the number of children she had and whether 'I can trust you'.
'Why would that be relevant?' Vetten asked.
Why would the Judge President, after this, request nude photographs of her upper body as proof that he could trust her?
'Why would you ask for a personal picture? She is a secretary, and you are asking for pictures without explaining why you want them. This is an expression of power – people who can demand things of others without explanation.'
