Complainant’s consent questioned in tribunal probing alleged sexual harassment against EC Judge
Advocate Muzi Sikhakhane probed Andiswa Mengo during cross-examination after she completed her evidence in chief.
Eastern Cape Judge President Selby Mbenenge at the Judicial Conduct Tribunal investigating sexual harassment allegations against him on 17 January 2025. Picture: Office of the Chief Justice/N Mabusela
JOHANNESBURG - Advocate Muzi Sikhakhane has suggested that High Court secretary Andiswa Mengo's failure to communicate her disapproval of her boss’s alleged behaviour could be understood as consent.
Mengo did not dispute that a reasonable person could have understood her responses and silence as consent to the alleged ongoing sexual advances by Eastern Cape Judge president, Selby Mbenenge.
Sikhakhane probed Mengo during cross-examination after she completed her evidence in chief.
She is giving evidence at the Judicial Conduct Tribunal tasked with investigating the claims she made against the top judge.
The junior employee alleges that she received unwanted crude and explicit images from the senior judge.
READ: Complainant accused of omitting alleged salacious messages she sent to EC Judge President Mbenenge
But when Sikhakhane asked if it was possible that part of the interaction was not unwanted, she agreed.
"It is reasonable to say that on the basis of your communication, that part of the communication was not unwanted. Because you have not communicated to the respondent – in fact, you have communicated that you are part of this, you are going along with it. It is not unreasonable to conclude that you are comfortable and consenting to this discussion," asked Sikhakhane, to which Mengo replied: "Yes."
COMPLAINANT PROBED ON INCONSISTENCIES
Mengo has also been questioned about inconsistencies in her communication with Mbenenge.
She said she felt disgusted and disrespected when the judge initiated suggestive conversations with her.
Sikhakhane said Mengo's responses to Mbenenge did not suggest she was disgusted by what he was saying to her.
On 18 June 2021, Mbenenge asked Mengo if they could pick up where they left off after a series of sexual messages sent by the judge.
At 4 am, Mbenenge asked Mengo "Ndiwrongo?" which translates to "Am I wrong?"
The junior employee responded saying not at all.
Sikhakhane probed her on this matter: "As an adult, old woman, [who] works - I understand power relations and I heard that story, it's a very, very solid story [of] power relations but I am assuming you are an adult, divorcee, you're no young kid.
"The man continues to this point and at this time he says to you, 'Am I wrong?' with all of these things that you think were disgusting, he says, 'Am I wrong?' and you say, expressly, 'No you are not wrong'.
In response, Mengo said the judge previously did not want to discern her silence as disapproval.
However, Sikhakhane disagreed saying that morning would have been the opportune time for the complainant to raise her concerns.