In a landmark judicial misconduct case that could reshape South Africa’s legal landscape, Judge President Selby Mbenenge’s counsel argued on Tuesday that his WhatsApp conversations with Andiswa Mengo constituted “elegant courtship” rather than sexual harassment.
Judge President Selby Mbenenge’s counsel has submitted that to conflate what is an elegant way of asking one out, with harassment – which is persistent and unwanted – does not find favour in the evidence that was presented before the Tribunal.
This was heard at the Judicial Conduct Tribunal which reconvened on Tuesday to hear oral arguments in the matter where a complaint was lodged against JP Mbenenge who is accused of having sexually harassed Andiswa Mengo.
Mengo reported the incidents during December 2022 and an official complaint was lodged against JP Mbenenge during January 2023.
According to JP Mbenenge’s counsel, advocate Muzi Sikhakhane SC, the issue of who initiated the conversations which were laced with flirtatious connotation, should not be a factor.
It was his submission that the content and conduct of parties engaged in the discussion is what matters.
Referring to a body of case law, Sikhakhane SC, said: “The definition of sexual harassment as articulated – and I will use the Equality Court Act, and I will ask the Tribunal to use the Employment Equity Act, if it so wishes – says this: Unwanted conduct which is persistent or serious and demeans or humiliate or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened advances which is translated to sex gender”.
These are some of the submissions of Sikhakhane SC who said the definition of sexual harassment and its “unwantedness” is the narrow ambit of the inquiry.
Alluding to the conversations and advances being consensual, Sikhakhane SC submitted that the essence of Mengo’s sexual harassment complaint is “concocted” and “reinterpreted” and the reinterpretation undermined the participants in the conversation.
“We can sit here for the whole day, the whole two months trying to analyse in our own condescending way what people mean or what they meant. What matters is what they said and meant to each other. It is this definition of sexual harassment that is the gateway to all the things you’ve been asked to find against the (JP). ‘How can a judge do this? A senior judge must not do this, a senior judge must not court this way’.
“But first you must find, before you reach if anything, that what he did was dishonorable. Of course, I would not court the way he does. I find it inelegant. But this is not a competition on how best to court. I do it my own way, or did it before I got married.
“This is a murky area in which men and women can differ. Some are against it, others are not. And therefore it will be difficult for this Tribunal to get there,” said Sikhakhane SC.
Throughout the Tribunal hearings, the JP maintained that he had not pressured Mengo and that when his conversations with her via Whatsapp took a “flirtatious” and “sensual” twist, it was his efforts to court her.
The Judicial Services Commission will receive the tribunal report and, based on the findings of the tribunal, may confirm a guilty or not guilty finding.
In the landmark matter, if found guilty of gross misconduct the JP may face impeachment.
Tribunal chairperson, retired Judge Bernard Makgabo Ngoepe, reserved the report’s decision.
