02-07-2025
Mbenenge's legal team pulls the ‘culture' and every other card in Judicial Conduct Tribunal
The tribunal heard that Judge President Selby Mbenenge would not take 'no' for an answer in a barrage of after-hours WhatsApps attempting to solicit nude photographs and discuss sexual positions.
The equivalent of an Intellectual Heavyweight title fight between the Old Patriarchs and the Gender-Based Violence Expert lit up Judge President Selby Mbenenge's Judicial Conduct Tribunal this week.
On Tuesday, after marathon testimony on Monday, renowned gender-based violence and sexual harassment expert Dr Lisa Vetten faced a gruelling cross-examination by advocate Mmusi Sikhakhane, representing Mbenenge.
Sikhakhane is ruthless as a cross-examiner, with a propensity to slide into sarcasm, false flattery and personal jabs, a tactic long recognised as an attempt to unsettle a witness.
He pulls at his tie like a man getting ready to roll, feigns surprise at replies and questions Vetten's credentials as one of the most experienced GBV experts in SA.
From the start, advocates Sikhakhane and Griffiths Madonsela have vehemently defended their client's conduct, saying it was 'consensual'.
'Not your culture'
On Monday, the tribunal heard from Vetten that Mbenenge would not take 'no' for an answer in a barrage of after-hours WhatsApps attempting to solicit nude photographs and discuss sexual positions.
Mbenenge communicated various demands, including for nude photographs, in 47 WhatsApp conversations with the complainant, court secretary Andiswa Mengo, it was revealed on Monday.
On Tuesday, Sikhakhne, after much badgering and informing Vetten that while he 'respected her as an intellectual', she could not possibly read or understand the nuances of the isiXhosa used in WhatsApps sent between the 64-year-old Judge President and the subordinate secretary, Andiswa Mengo, 41.
In isiXhosa culture, Sikhakahne ventured, men were expected to persist when in pursuit of a woman, no matter how often she said 'no'. That is how it was done.
'Are you saying traditional courting rituals are unconstitutional?' Sikhakhane tossed at Vetten.
On Tuesday, Vetten, undeterred by Sikhakane's red herring, pointed out this was also the case in most other cultures, but that the entire issue at hand was whether this behaviour was appropriate in the workplace.
In this milieu, governed by strict labour rules and regulations, the Judge President had status and power far greater than that of Mengo, she said.
A similar argument about the misunderstanding of 'culture' was used by Jacob Zuma's legal team during his 2006 rape trial and before his acquittal. In that instance, Zuma had claimed that Fezekile Kuzwayo, or Kwezi, as she was known at the time, had worn a 'kanga', which he had interpreted as an invitation to sexual intercourse.
Zuma also argued that a Zulu man could, culturally, not leave a woman unsatisfied.
Agency and recourse
On Tuesday, Sikhahane also suggested that Vetten had 'infantilised' Mengo, rendering her a person without agency.
'She is a divorced woman with a teenaged daughter, she is not a child,' Sikhakhane responded to Vetten's suggestion that the complainant had viewed the JP, who is also a pastor, as 'a father figure'.
He criticised Vetten for constantly interpreting matters in favour of the complainant during the tribunal while she had not had sight of the entire record. This would show that Mengo knew exactly what she was doing when she finally responded to Mbenenge, said Sikhakane.
Anyone watching the live broadcast on YouTube on Tuesday would have had many occasions to shout at Sikhakane's undisguised dastardliness in framing questions and receiving answers.
There were an equal number of occasions to punch the air as Vetten served comeback after comeback, undeterred.
Mengo's intentions, through silence or responses, were surgically examined, including how to interpret her response that should she say 'yes' to her boss, this might lead to further unwanted contact.
Mbenenge, on the other hand, had interpreted this to mean that should Mengo say 'yes', this would be an indication that she wanted to go 'Full Long Tom' – or sexual intercourse.
At the end of her testimony, Vetten said she would not change her opinion of the meaning and intention of the WhatsApps as an expert witness, even after she had had sight of the entire record.
'In the end, he [Mbenenge] asked her multiple times for nude photos, which she ended up not sending. She also felt aggrieved enough to report the matter,' said Vetten.
The hearing continues on Wednesday with Sikhakane leading witnesses in favour of Mbenenge. DM
