By Gillian Schutte
How Many Lies Can the JSC Ignore?
By Gillian Schutte
Judge President Selby Mbenenge’s review application places a severe question before South Africa. How can the Judicial Service Commission avoid the lies attributed to Ms Andiswa Mengo by the Judicial Conduct Tribunal, then build a finding of gross misconduct on the same damaged record?
The sexual harassment charge was built on three allegations.
First, Mengo alleged that Mbenenge sent her unwanted sexualised WhatsApp messages.
Second, she alleged that he sent crude or explicit images, including an alleged image of his genitals.
Third, she alleged that he behaved indecently towards her in his Mthatha chambers during the disputed 14/15 November 2022 period.
The Tribunal tested her version on all three fronts. It rejected sexual harassment. It found the WhatsApp exchanges consensual on the balance of probabilities. It rejected the allegation that Mbenenge transmitted explicit material to her. It found the Mthatha chambers allegation improbable. It also found that Mengo gave false evidence. In clear language, parts of her evidence were lies under oath.
The flirtatious WhatsApp exchanges ran from approximately June 2021 to February 2022. Mbenenge says he ended the exchange around February 2022. Around nine months later, he learned that Mengo had shared some of their private conversations on her social media status. She then filed a complaint alleging sexual harassment, explicit images and an incident of indecent exposure in his office.
The timing is central. The image allegation and the chambers allegation emerged after the flirtatious exchange had ended. When the alleged image came under scrutiny, the complainant could not say when and at what time it had supposedly been sent.
The record must therefore be read through the three allegations that formed the sexual harassment case.
1. The first charge was that Mbenenge sexually harassed Mengo through unwanted WhatsApp messages.
Mbenenge argued that the complaint did not place the full conversation before the process. According to his founding affidavit, the forensic download revealed material messages omitted from both the December 2022 complaint and the January 2023 complaint. Those omitted messages allegedly showed initiation, reciprocity, humour, warmth and flirtatious participation from Mengo’s side.
This was no small omission. Sexual harassment turns on unwelcomeness. If a complainant cuts out her own responses, provocations, warmth and participation, the record changes shape. Mutual flirtation can be made to look like pursuit, while a reciprocal exchange can be made to look like coercion. A complainant who acted with agency can be recast as a passive recipient.
The Tribunal found the exchanges consensual on the balance of probabilities. It found no sexual harassment. It also criticised Mengo for false evidence.
That finding should have restrained the JSC. Instead, the JSC appears to have leaned on hierarchy as though hierarchy could replace the missing proof. Power imbalance may inform a workplace enquiry. It cannot turn an edited record into a complete one, erase the complainant’s participation, or cure concealment.
2. The second charge was that Mbenenge sent Mengo crude or explicit images, including an alleged image of his genitals.
Mbenenge denied sending the image. He argued that the allegation could not be located, authenticated or forensically linked to him. The evidentiary questions were direct. Where was the original file? What device produced it? What metadata connected it to him? What chain of custody preserved it? Where did the alleged image sit in the chat sequence? On what date and at what time was it supposedly sent?
No answer capable of carrying the allegation emerged.
During the proceedings, when the alleged image was tested, Mbenenge asked when and at what time it had been sent. The complainant could not say. The Chair then asked the obvious procedural question: how was he going to defend himself?
A person cannot defend himself properly against an alleged digital transmission when the accuser cannot place it in time. A screenshot cannot convict through suggestion. A cropped image cannot become proof through outrage. Digital evidence requires authentication, metadata, device linkage, time placement and chain of custody.
When it was suggested that forensic investigators found no such image on his phone because he had deleted it, Mbenenge corrected the record. The mandate was to locate images. None were found. The Chair later asked him directly whether he had sent Annexure K8 to the complainant. He answered that he had not.
This allegation entered the complaint after the flirtation had ended, yet the alleged sending of the image could not be located by date or time when tested. Suspicion of deletion could not replace proof of transmission. Absence could not be turned into guilt.
The Tribunal rejected the allegation that Mbenenge transmitted explicit material to Mengo.
3. The third charge was that Mbenenge exposed himself to Mengo in his Mthatha chambers and made a crude sexual remark.
This accusation carried enormous public weight because it suggested a physical incident inside a Judge President’s office. Yet it arose after the flirtatious WhatsApp exchange had ended.
The complainant had to establish date, time, place, opportunity, presence and corroboration. Outrage could not carry the allegation. Evidence had to carry it.
The allegation was first placed on 15 November 2022. When the Tribunal required Mengo’s side to pinpoint the time, the afternoon of 15 November was selected. Mbenenge then produced tracker evidence he had secured independently. That tracker evidence showed that he left Mthatha for East London at noon on 15 November.
This created a direct contradiction. If he had left Mthatha at noon, he could not have committed the alleged act in his Mthatha chambers during the afternoon of 15 November.
After the tracker evidence emerged, the date shifted to the afternoon of 14 November.
The first version failed when tested against objective tracker evidence. The revised date then required its own foundation. Who supplied the new date? Why had 15 November been advanced? How was 14 November reconstructed? What independent proof supported the changed version?
Available CCTV did not support Mengo’s account. The visitor’s register and other movement-related evidence did not place the allegation on secure ground.
The sequence is clear. Mengo alleged a physical incident in Mthatha chambers. She placed it in November 2022. Her side selected the afternoon of 15 November when pressed for time. Mbenenge produced tracker evidence showing that he left Mthatha for East London at noon on 15 November. The date then shifted to 14 November. Available CCTV did not support her version. The visitor’s register did not support it.
The Tribunal rejected the claim as improbable and found no sexual harassment.
These were the three allegations that made up the sexual harassment case. The WhatsApp allegation was weakened by omitted messages and a full record showing consensual communication. The image allegation failed because it could not be authenticated, timed, located or forensically linked to Mbenenge. The Mthatha chambers allegation failed because the date shifted after tracker evidence contradicted the first version, while CCTV and movement records did not support Mengo.
The JSC then converted the matter into gross misconduct.
The JSC had to explain how false evidence, omitted WhatsApps, an unproved genital-image allegation and a shifted chambers date could still support gross misconduct.
The JSC also relied on what it described as Mbenenge’s lack of remorse. That finding requires close examination. Remorse for what? Mbenenge’s position was that the sexual harassment allegations were untrue. The Tribunal rejected those allegations. He could not be expected to show remorse for sending a genital image the Tribunal did not find he sent, or for exposing himself in chambers where the allegation was rejected as improbable. His account draws a distinction between moral accountability for private flirtation and refusal to confess to allegations he maintained were false. The JSC appears to have treated his refusal to validate the rejected sexual harassment case as lack of remorse. That is legally dangerous. Remorse cannot be demanded for allegations the record did not prove.
The Tribunal’s finding was limited to workplace impropriety. It did not find sexual harassment. It did not find that Mbenenge sent a genital image. It did not find that he exposed himself in chambers. It did not cure perjury, omitted messages, shifted dates or failed corroboration.
Gender justice cannot be built on selective truth. Genuine complainants need a process that can distinguish truth from reconstruction and proof from inference. Once a Tribunal has found that a witness lied, concealed evidence and failed to prove the most serious allegations, the JSC must explain how it still used that record to justify gross misconduct.
How many lies can the JSC ignore before the public is allowed to ask whether the case against Mbenenge has been built on lies?
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