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Mbenenge tribunal has chilling echoes of Khwezi rape case

Mbenenge tribunal has chilling echoes of Khwezi rape case
Rebecca Davis
By Rebecca Davis
5 Feb 2025
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It has been almost 20 years since former president Jacob Zuma was acquitted of rape – but the judicial conduct tribunal probing sexual harassment claims against Eastern Cape Judge President Selby Mbenenge reminds us how little has really changed.

Andiswa Mengo has a soft, high-pitched voice. The 40-year-old court secretary had to use it a lot in January, where over the course of two weeks she sat in a boardroom in a Rosebank hotel and accused one of the most powerful figures in the South African judiciary of sexual harassment.

The issue of Mengo’s voice came up several times at the judicial conduct tribunal. At the beginning of her testimony, she was asked by the tribunal chair, retired judge Bernard Ngoepe, whether she was sick. She replied apologetically that her voice was just “squeaky”.

The tribunal subsequently heard that one of the first WhatsApps sent by Eastern Cape Judge President Selby Mbenenge to Mengo questioned her age, because he said her voice “sounds like that of a child”.

Judge President Mbenenge would go on to repeat to Mengo via WhatsApp (these messages were translated from isiXhosa for the court via interpreters): “The voice is small”.

Tribunal chair Ngoepe broke in to affirm Mbenenge’s sentiment, saying: “I almost thought so this morning when I asked if you had a touch of flu!” 

Mengo told the tribunal that when she received this message, her feeling was: “Now I’m getting tired of being reminded of my voice being small, because I do know that it’s small.”

The spectacle of much older men commenting on the child-like nature of an adult woman’s voice felt unsettling in itself. Unfortunately, it was just the beginning.

Tribunal unprecedented in SA history


Mengo’s voice may be small, but her courage is not.

As evidence leader Salomé Scheepers reminded the tribunal, these proceedings are unprecedented in the history of South Africa. Never before has a sitting judge, let alone a judge president, been subjected to a judicial conduct tribunal after being accused of sexual harassment.

Sexual harassment is rife throughout the legal ecosystem, advocacy group Judges Matter told Daily Maverick this week. A new sexual harassment policy for the judiciary – the first of its kind – has yet to be promulgated.

If Mbenenge is found by the tribunal to have sexually harassed Mengo, that amounts to gross misconduct: an impeachable offence. Mbenenge will be stripped of his position and the salary judges ordinarily receive for life. Little wonder, perhaps, that the Eastern Cape Judge President arrived at proceedings with three silks (senior advocates) to fight his corner.

“The question the tribunal is faced with is whether it is suitable and appropriate for the judge president of a division, a married man, a leader in the community and church and father figure, to engage in persistent and unwanted sexual conduct [towards] a junior legal professional,” Scheepers told the room at the proceedings’ outset.

The crux of the matter, as seen by Mbenenge’s legal team, is the word “unwanted”.

This is not, for the most part, a he-said-she-said case. If it was, it would probably have never risen to the status of a judicial conduct tribunal – because the word of a junior court secretary, against the man responsible for the legal functioning of the entire Eastern Cape, would be so easy to dismiss.

This is different because there is an accompanying dossier of evidence, in the form of WhatsApp messages sent over months by Mbenenge to Mengo. What Mbenenge’s team is seeking to do is to turn the focus on the responses to these messages by Mengo – to argue the case that what was happening between the two was a mutual flirtation.

After Mbenenge’s initial messages to Mengo one night, asking her age and whether she had a male partner, she received a barrage of messages from him, often after hours and on the weekend. At one point, in fact, Mengo commented how surprised she was that Mbenenge could even find the time for all this messaging.

Mengo changing her WhatsApp status or profile picture appears to have almost guaranteed a speedy reaction from Mbenenge, who would use that as an excuse to comment on her appearance. On the basis of the messages presented to the tribunal, Mengo could not even post a picture of herself with her sister’s kids at Spur without getting a WhatsApp from Mbenenge featuring an emoji with a tongue hanging out.

This dynamic overspilled the boundaries of the online world, Mengo told the tribunal with tears streaming down her face, when Mbenenge allegedly pointed to his erection in his office and asked her to perform oral sex. Mbenenge denies this.

Shocking cross-examination from Sikhakhane


There have been multiple concerning aspects to this tribunal. 

Many older judges are not tech-savvy, and Judge Ngoepe, chairing the tribunal, has appeared to struggle at points to understand the meaning or function of WhatsApp emojis, necessitating agonising exchanges spelling out the appearance and possible significance of, for instance, the emoji of a monkey covering its eyes. (This seems to have been Mengo’s go-to emoji to denote embarrassment or shyness during her exchanges with Mbenenge.)

Another issue has been the lack of protection offered to Mengo. She told the tribunal how she previously received threats if she did not drop her complaint, as a result of which she has had to move her life from the Eastern Cape to Gauteng.

If the tribunal were a criminal sexual offences trial, Mengo could be buffered from her alleged sexual harasser and his lawyers in a number of ways: by giving evidence from another venue, for instance, rather than having to share a room with Mbenenge for two weeks solidly.

She would also be able to respond to questions via a judge rather than directly to Mbenenge’s lawyer – something which must have seemed increasingly enviable during her quite shocking cross-examination by Muzi Sikhakhane SC.

“You do agree with me that sexual harassment is actually a pandemic that many women suffer?” Sikhakhane asked Mengo at the start of his cross-examination.

Yes, she replied.

“You will agree with me that those women who raise such allegations falsely…must face severe punishment?”

Yes, she replied.

“In fact those women are not different from male misogynists who harass women: they are the same?”

Yes, she replied.

“If we find any lie told by an accuser, we must treat it with the same condemnation as the sexual harasser himself?”

This intimidation went on without Sikhakhane ever being warned off by the chair, as he persisted with trying to create a moral equivalence between sexual harassment and falsely reporting sexual harassment.

“Life will never be the same for you if it’s found that you’ve lied,” he continued.

“Do you agree with me that a liar is someone who tells lies? Do you agree with me that no one should trust a liar?”

It was relentless.

“You are familiar with the term perjury? Telling a lie, even one, in front of a panel when you’ve taken an oath constitutes perjury.”

This was only the warm-up. Then Sikhakhane reached the meat of his argument.

“I want you to listen very carefully to what I’m about to say… You too sent things [to Mbenenge] that were disgusting.”

When Mengo’s lawyer Nasreen Rajab-Budlender suggested that Sikhakhane’s mode of questioning was unnecessarily aggressive, he accused her of “policing him”, and was backed up by Ngoepe.

Sikhakhane suggested that in her initial complaint, Mengo had sought to present herself as morally superior in a way belied by her actual responses to Mbenenge.

“You write this statement concealing the disgusting nature of your mind, too, when communicating about disgusting messages,” Sikhakhane charged.

“You want to present yourself, rather misleadingly, as this little girl who’s scared.”

At one stage, in a head-spinning reverse Uno move, Sikhakhane accused Mengo of being the real predator: “The objectification of women” in the messages, he said, “comes from you”.

Listening to Sikhakhane, it was hard not to be reminded of other legal proceedings involving a former client of his: the 2006 rape trial of former president Jacob Zuma.

Khwezi, Mengo and ‘imperfect’ witnesses


“She is a strong person well in control of herself knowing what she wants. She is definitely not that meek, mild and submissive person she was made out to be.”

Those lines are strikingly similar to Sikhakhane’s claim about the gulf between Mengo’s real conduct during the WhatsApp exchanges with Mbenenge and the version of herself she was seeking to present to the tribunal.

But they are actually taken from the judgment handed down in the 2006 Zuma rape trial by Judge Willem van der Merwe, and they refer to Zuma’s rape accuser, the late Fezekile ‘Khwezi’ Kuzwayo. 

Reading that judgment back now, almost two decades later, is at points jaw-dropping.

Despite the fact that Kuzwayo told the court: “I consider my sexual orientation to be a lesbian”, for instance, the judge took it upon himself in his verdict to correct this, pronouncing: “It is clear that the complainant is bisexual with a lesbian orientation”.

Questions were permitted to be asked about Kuzwayo’s entire sexual history; a gynaecologist testified that the appearance of her hymen ring was “only associated with frequent penetrative sexual intercourse”. 

One of the reasons the judge gave for acquitting Zuma was that, quote, “Only a foolish, over-confident rapist would have dared entering the room of his victim not knowing whether she is going to shout and scream or not”.

But what is most striking was that court’s apparent inability to contemplate that a woman being subjected to unwanted sexual advances might not cry out or fight back or run away – but instead be paralysed out of shock and out of fear.

Similarly, Sikhakhane’s modus operandi in the Mbenenge hearings is to try to convince the tribunal that because Mengo did respond to most of the judge president’s messages, the exchanges must have been mutually desired.

“You are old enough to know that keeping quiet would have been better than communicating the opposite,” Sikhakhane lectured Mengo at one point.

He then accused her of deceit – for seeming to be enthusiastically engaging with Mbenenge when in reality, she told the tribunal, she was merely trying to placate him as a single mother who was worried about losing her job.

“Is there any particular reason why you lie?” Sikhakhane asked.

“Because I was scared of him,” Mengo replied, for the umpteenth time.

“A liar is a person who lies. The reason does not matter,” Sikhakhane shot back.

The reality is that Mengo, much like Khwezi, is a complicated complainant – as whistle-blowers often are.

It would, of course, be an easier case if Mengo had laid down firmer boundaries in her messaging with Mbenenge (though ask any woman – or man – who has been in this situation: easier said than done). It would be an easier case if Mengo had not told Mbenenge he had to “earn” photos of her, or if she had not messaged him, at one point: “When I want money, would you give?”

Sikhakhane will argue that these messages are sufficient to erase the vast imbalance of power between the head of the Eastern Cape courts, 23 years her senior, and one of the most junior employees in the system. They are not.

In 2018, local human rights lawyer Gabriella Razzano wrote an important piece for Daily Maverick criticising the burden of “moral purity” that we place on whistle-blowers. We want them to be perfect, because it simplifies our moral calculus.

But real life, and real human motivations and relationships, are normally messier than that. Mengo is not a perfect witness – but she deserves bucketloads more respect than the tribunal, now on adjournment till May, has given her thus far. DM

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