Get off your feminist, Western, culturally superior, subjective high horse, Mbenenge’s lawyer tells tribunal

Counsel for Eastern Cape Judge President Selby Mbenenge, who is accused of sexually harassing court secretary Andiswa Mengo, has suggested the complaint is designed to “end his career”.

Advocate Muzi Sikhakhane, presenting his closing arguments at the marathon Judicial Conduct Tribunal, suggested that Mengo’s allegations were “fabrications” being viewed through a “feminist, Western” framework that did not apply in this instance.

“People with western notions of this conversation [in explicit WhatsApps between Mbenenge and Mengo] enter through a notion of being superior,” said Sikhakhane.

Responding to these assertions, evidence leader advocate Salome Scheepers, as well as advocate Nasreen Rajab-Budlender, for Mengo, pointed out that the complainant had not been asked what her “cultural” understanding of the situation may have been.

This was because this argument had been introduced as an afterthought.

“This should have been put to her, but was not. There is no merit to this argument,” said Rajab-Budlender.

She added that Mbenenge’s team had argued that the evidence leader and Rajab-Budlender had “infantilised” Mengo by suggesting that the power imbalance between a judge president and a court secretary was the issue, and that she had possessed the agency to stop it.

Earlier, tribunal chairperson retired Judge Bernard Ngoepe suggested that women hold all the power in relationships with men, and that the fact that men went down on a “bended knee” to propose marriage was evidence of this.

Read more: Retired Judge Bernard Ngoepe compares women’s power to a key for Mercedes Benz and Donald Trump

You don’t buy me flowers

Sikhakhane said that anyone questioning this power imbalance did not understand Xhosa culture.

“You think it represents barbarism. You ask, ‘Why didn’t he buy her flowers?’ Inherent in that analysis is absolute prejudice and condescension. To conflate what you think is an inelegant way of asking one out as harassment does not find favour in the evidence presented,” offered Sikhakhane.

Ngoepe seemed to agree with this view. 

“Where in Sekhukhuneland do we get to a restaurant?” he joked, dragging in Polokwane, where he grew up in the small village of Ga-Matlala, where he was born in 1947.

Responding to comments that his cross-examination of Mengo, who spent several days being ruthlessly quizzed, was brutal, Sikhakhane offered that there would be those who accused him of being a misogynist.

He attributed his stance to seeking to uncover only the facts. And these were, he offered, that Mengo had entirely fabricated the charges of sexual harassment.

The fact that the judge president had initiated these conversations and that Mengo had said “no” on 13 occasions was neither here nor there.

Read more: Tribunal hears Judge President Selby Mbenenge could not take ‘no’ for an answer

Judges enjoyed rights “first as a human being”, and the tribunal had entered the “realm of two adults courting”, said Sikhakhane. Interpreting this in any other way would be to “impose a subjective view”. No one in the room was an expert, added Sikhakhane.

Public opinion of no concern

Ngoepe, in closing, offered that the tribunal would be deciding the matter “in accordance with the law and the facts of this case and not in accordance with the court of public opinion, one way or the other. We are totally unmoved by the court of public opinion.”

He said he wanted to “assure the parties that we are not going to consider this case according to slogans or not according to slogans. We are going to decide it according to the law and the facts and the evidence placed before us.”

Scheepers told the tribunal that Sikhakhane’s assertion that there was no evidence supporting the complainant’s version was untrue and that, indeed, she had surrendered her cellphone with all the messages to the tribunal.

“She was asked for her phone and she provided it. She preserved all the evidence; the judge president deleted all the evidence. 

“There was no agreement that both parties would delete the messages. This is no meeting of minds. It is a reflection of her knowing there was something he was doing that was wrong and she was uncomfortable,” Rajab-Budlender said.

‘They want to end his career’

Sikhakhane argued that no one “must be sexually abused, but nobody must be falsely accused”.

He said that in this instance there was no “one size fits all overview of the evidence” and that there was “not an iota of proof” that the messages between Mbenenge and Mengo constituted sexual harassment.

Those who had submitted the charges simply wanted to end Mbenenge’s illustrious career.

While the messages and the communication were “salacious, sensual and sexual”, the complaint brought to the JSC was narrow, and none of the issues relating to “gender” mattered in this instance, said Sikhakhane.

He agreed that this was an important case for future matters, as both Scheepers and Rajab-Budlender had pointed out, but said essence of sexual harassment — that the attention was “unwanted” — was absent.

“It has been concocted and reinterpreted,” charged Sikhakhane.

While people may ask how a judge could behave in this manner, and no matter how “disgusting” the messages were, this was not a competition on “how to court”, he added.

Read more: Culture versus consent as Mbenenge tribunal exposes deep fault lines in SA’s legal system

“To suggest that all the complainant must do is to simply lay a complaint, after that we will concoct all sorts of sympathies, is a dangerous approach. As much as it is an attractive feminist approach it is a dangerous approach,” argued Sikhakhane.

So what?

As to the fact that this was the first case in which a senior judicial officer had had to face a tribunal, Sikhakhane responded: “So what?” 

He accused the evidence leader and Rajab-Budlender of “selective quoting of the Constitution”.

Ngoepe commented that he had asked expert witness Dr Lisa Vetten whether “a no means no and a yes means yes”, but she had “hesitated and gave a qualified answer to that… surely a no is no and a yes is yes”.

While the entire matter had been “seriously embarrassing” to both Mbenenge and Mengo, “both the complainant and the respondent will never be the same. A private conversation made it to the public realm.”

Sikhakhane said there had been no abuse “of culture” and that “it is difficult to analyse a community of people from the outside when you are not in that community. It is worse when you assume the superiority of your own culture.”

Ngoepe reserved judgment on Tuesday. DM