Cultural courting or sexual harassment?: Tribunal hears closing arguments in judge Selby Mbenenge case

It was a tense day before the judicial tribunal on Tuesday as Advocate Nasreen Rajab-Budlender firmly rejected Judge President Selby Mbenenge’s defence that his sexually charged WhatsApp messages to court secretary Andiswa Mengo were part of a Xhosa “cultural courting” practice.

“That is the very definition of sexual harassment,” Rajab-Budlender declared, arguing that accepting such a claim would dangerously legitimise the idea that persistence in the face of a woman’s refusal could be excused as cultural expression.

The tribunal, chaired by retired judge Bernard Ngoepe, heard closing arguments in a case that has drawn national attention — not only because it involves a sitting judge but also because it could set a precedent for how sexual misconduct within the judiciary is handled in South Africa.

Mengo, a court secretary, accuses Mbenenge of sending her a string of explicit WhatsApp messages between 2021 and 2022. Some, retrieved from her phone, included sexual emojis — bananas and eggplants — while others asked for nude photos or suggested intimacy.

Mbenenge has admitted sending the messages but insists the exchanges were consensual. He denies allegations that he sent her a picture of his genitals or asked for oral sex in his Mthatha chambers.

Mengo, however, maintains that the judge’s advances were unwanted and left her feeling intimidated. Over ten days of testimony and cross-examination, she described her shock, confusion, and fear of the professional consequences of rejecting a senior judicial officer.

Rajab-Budlender pointed out that Mengo had said “no” or expressed disinterest at least 13 times, according to message transcripts. Her occasional use of playful emojis, she explained, reflected attempts to defuse the situation and protect herself — not genuine consent.

“This case is not just about two individuals,” Rajab-Budlender told the tribunal. “It will influence whether other women in the justice system will feel safe enough to come forward. When we define how women are expected to behave in the face of power, we define the culture of accountability in our institutions.”

Ngoepe interjected, cautioning that each case must be judged strictly on its own facts and legal merits. But Rajab-Budlender persisted, arguing that Mbenenge’s conduct — particularly his instructions to delete messages and hide the exchanges from his wife — was inconsistent with the Judicial Code of Conduct, which demands honourable behaviour even in private.

“What is on trial here,” she stressed, “is his conduct, not hers. There is no such thing as a perfect victim.”

She added that Mbenenge’s behaviour would have been a dismissible offence in any workplace and questioned the argument that judges were entitled to private romantic relationships with junior staff. “This was not an open or equal relationship,” she said. “It was one cloaked in secrecy and power imbalance.”

Gender-based violence expert Dr. Lisa Vetten, who testified earlier in the hearing, underscored those power dynamics, stating that Mbenenge had “exploited” his seniority.

However, Ngoepe later expressed concern about what he described as Vetten’s suggestion that women lack all agency, pointing to messages in which Mengo appeared to exercise emotional control. Rajab-Budlender responded that such interactions could not be separated from the workplace hierarchy and pressure.

For the defence, Advocate Muzi Sikhakhane urged the tribunal to dismiss the complaint, describing the exchanges as “flirtation gone wrong.”

“This was flirting — inelegant perhaps, but not harassment,” he argued. “There is no evidence of coercion, humiliation, or threats. Nobody must be harassed, but no one should lose their career over false allegations.”

He further dismissed claims of explicit photos and sexual requests as “painful public lies,” insisting that the messages did not show persistent or threatening behaviour.

Rajab-Budlender, in her closing reply, maintained that the evidence met the threshold for gross misconduct — or, at the very least, misconduct — leaving the Judicial Service Commission to decide the appropriate sanction.

Ngoepe concluded the session with a firm assurance: “We will not be swayed by public opinion. We will decide this matter solely on the facts and the law.”

The tribunal then adjourned to deliberate, leaving the fate of the Eastern Cape’s top judge hanging in the balance — and with it, a critical test for how seriously the judiciary treats allegations of sexual harassment within its own ranks.

FAQ

1. Who is Judge Selby Mbenenge?
Judge Selby Mbenenge is the Eastern Cape Judge President currently facing a tribunal over allegations of sexual harassment involving WhatsApp messages sent to his court secretary, Andiswa Mengo.

2. What are the allegations against Judge Mbenenge?
He is accused of sending multiple sexually explicit WhatsApp messages to Mengo between 2021 and 2022, some containing sexual emojis and requests for intimate photos.

3. Did Judge Mbenenge admit to sending the messages?
Yes, he admitted sending the messages but claims the interactions were consensual. He denies sending explicit images or requesting sexual acts in his chambers.

4. What is Mengo’s response to the allegations?
Mengo maintains that the advances were unwanted, leaving her shocked, confused, and afraid of professional consequences. She said she clearly indicated “no” at least 13 times.

5. What is the tribunal considering in this case?
The tribunal is examining whether Mbenenge’s conduct constitutes sexual harassment, a violation of the Judicial Code of Conduct, and whether it amounts to gross misconduct.

6. What defense is Judge Mbenenge using?
His legal team claims the messages were flirtation, not harassment, and argue that the communications were mischaracterized. They also claim the alleged sexual advances were consensual.

7. Why is this case significant?
This is the first case in which a sitting judge faces sexual harassment charges in South Africa. Its outcome could influence how future complaints within the judiciary are treated.

8. Who is overseeing the tribunal?
The tribunal is chaired by retired judge Bernard Ngoepe, who will decide the matter based on the facts and law, without influence from public opinion.

9. What potential outcomes could result from the tribunal?
The tribunal could find Mbenenge guilty of misconduct or gross misconduct, which may lead to disciplinary action by the Judicial Service Commission.

10. How does this case impact workplace harassment standards?
It highlights the importance of accountability and power dynamics in workplace relationships, particularly in the judiciary, setting a potential precedent for how similar cases are treated.