Judge cleared of sexual harassment charge

The woman who accused a South African judge of sexual har­ass­ment has been labelled a liar by the tribunal hand­ling her com­plaint – a sting­ing cred­ib­il­ity find­ing experts say will make it dif­fi­cult for her to take the case fur­ther. East­ern Cape Judge Pres­id­ent Selby Mben­enge has been cleared of sexual har­ass­ment and gross mis­con­duct by the Judicial Conduct Tribunal (JCT). The Sunday Times reports that a key find­ing in the 169-page report is that court sec­ret­ary Andiswa Mengo omit­ted from her ori­ginal com­plaint flir­ta­tious and sexu­ally sug­gest­ive mes­sages she her­self had sent the Judge Pres­id­ent. What is more, an alleged in-per­son incid­ent at the court­house involving inap­pro­pri­ate beha­viour on the part of Mben­enge could not be proved. Those find­ings, the tribunal said, under­mined her claim that she was an unwill­ing par­ti­cipant in the exchanges. City Press reports that the case’s most dramatic revelation came when investigators discovered Mengo had committed perjury about seemingly procedural matters. She claimed under oath that she did not have access to a previous statement when preparing her second complaint, yet forensic analysis revealed both statements were ‘word-for-word identical’, including identical punctuation marks and typographical errors. The rul­ing saves Mben­enge from impeach­ment and clears the way for his return to the Bench today – after his hav­ing spent nearly two years on spe­cial leave. However, the find­ings have sparked a fierce back­lash from act­iv­ists and legal experts, who say the out­come sends a troub­ling sig­nal about how the inter­sec­tion of power, gender and work­place con­duct is under­stood at the highest levels of the judi­ciary. ‘This case has high­lighted the insti­tu­tion­al­ised pat­ri­archy within our judi­cial sys­tem and the enti­tle­ment of men, includ­ing in some of the highest offices of the land, to treat women col­leagues as worthy sexual con­quests,’ said Professor Rachel Jew­kes, a lead­ing researcher on viol­ence against women.

Mben­enge was hauled before the JCT after Mengo accused him of sexual har­ass­ment, based largely on a series of What­s­App mes­sages and alleg­a­tions of inap­pro­pri­ate work­place con­duct. She test­i­fied that the exchanges unfol­ded in the con­text of a power imbal­ance that made it dif­fi­cult for her to refuse his advances. The Sunday Times reports that Mben­enge countered that the inter­ac­tions were con­sen­sual and amoun­ted to recip­rocal flir­ta­tion. The JCT ulti­mately rejec­ted the har­ass­ment claim, find­ing no proof of overt or cov­ert coer­cion. It did, however, rule that Mben­enge com­mit­ted lesser mis­con­duct by ini­ti­at­ing and main­tain­ing a ‘flir­ta­tious rela­tion­ship’ with a sub­or­din­ate dur­ing work hours – a breach of the judi­cial code of con­duct.

While Mbenenge has been found not guilty of gross misconduct, he was found to have fallen short of standards expected of a member of the judiciary. The fact that Mbenenge had initiated and conducted a ‘flirtatious relationship’ with Mengo at her place of work and during work hours was also dishonourable, the tribunal found. The Daily Maverick reports that the Women’s Legal Centre, which represented Mengo at the tribunal, saidc‘we are currently supporting our client’, who needed time to process ‘both the outcome and the deeply disappointing language used in parts of the report’. The centre was awaiting instruction from Mengo and noted that she reserved her right to consider further legal recourse, ‘including the possibility of taking the tribunal’s findings on review’. It was ‘important’ that the tribunal had found Mbenenge guilty of misconduct or inappropriate conduct, the centre noted: ‘This finding affirms that the conduct complained of was unacceptable and improper, and that Ms Mengo’s complaint was not without merit’. The process was not yet concluded, added the centre, as the report now proceeded to the JSC, mandated to consider it in order to make a final determination.

Mbenenge told City Press that he has opened a case of crimen injuria against the secretary, adding that since he has been cleared, he will be ‘reporting for duty (today)’. When pressed to comment further on the case, Mbenenge referred City Press to his attorney, Thabo Kwinana, who said the Judge President plans to pursue criminal charges against his accuser. ‘He has always maintained that he is innocent,’ Kwinana said.