COUNSEL for Eastern Cape High Court Judge President Selby Mbenenge, who is accused of sexually harassing a junior judge’s clerk, told the complainant that the judge has never sent her a picture of his private part or of any private part.

“He never sent you a picture of his private part or any private part. This allegation by you has embarrassed my client for all this time, actually for years,” Advocate Muzi Sikhakhane told Andiswa Mengo.

Mengo was on the witness stand for eight days before the Judicial Conduct Tribunal, which is hearing her complaints regarding Judge Mbenenge.

Sikhakhane started questioning her on Tuesday and continued on Wednesday, in a bid to prove that she was never a victim of harassment and power play, as claimed by her.

In referring to her allegation that Judge Mbenenge had sent her a picture of his private part, Sikhakhane told Mengo he now wanted the truth, so that both she and Judge Mbenenge can move on with their lives.

“I put it to you he never sent you a picture of his private part. This is the allegation which slayed my client publicly. This picture has tarnished his reputation and probably broken his family,” Sikhakhane told Mengo.

“Evidence will be led that this picture you claimed he sent you cannot be found by the experts on his phone.”

Mengo responded that she took a screenshot of the picture as Judge Mbenenge had deleted the picture soon after he had sent it.

Sikhakhane told Mengo that he is not being “nasty” to her with his questioning, but “this is a path that has been nasty to my client and his life”.

He further said this picture she claimed was sent by Judge Mbenenge does not exist. “The experts will testify that this picture cannot be found anywhere on the gallery of your phone or on the respondent’s phone.”

Mengo was adamant that the picture was indeed sent to her.

Sikhakhane also questioned Mengo about some of her responses to messages and images she claimed Judge Mbenenge had sent her, which conveyed the belief that she was comfortable with their exchange.

He referred her to one of the many WhatsApp exchanges between them, in which she said he had sent her a sticker of a peeled banana. This she understood to mean a male private part.

In response to this sticker, Mengo testified that she had sent him an image with the words “Honourable member, don’t do that.”

But Sikhakhane said she omitted to tell the tribunal that prior to her sending him that message, she had sent him laughing emojis.

“Do you agree that the person who receives this will perceive it as a laughing matter?” Sikhakhane asked.

Mengo responded that “this may be so.”

Sikhakhane said he will call an expert on emojis to testify before the tribunal about exactly what emojis exactly mean.

This expert, he said, will testify that those laughing emojis used by Mengo, in fact, meant the matter was so funny that they were “laughing on the floor emojis”.

He also referred Mengo to her evidence in which she said the judge president had sent her pictures of vegetables and fruit - a brinjal and a guava. She said these depicted a male and female private part and testified that it had upset her to have received this.

“Yet you send him a sticker of a laughing lady back. This sticker does not communicate disgust on your part. It is thus not unreasonable for the receiver to accept approval on our part,” Sikhakhane said.

The advocate on Tuesday, before starting his questioning, said it is not disputed that his client and Mengo exchanged various text messages, but the judge president did not share any vulgar images.

But the tribunal must determine whether this amounts to simple flirting or sexual harassment. If flirting is found, there is nothing for Judge Mbenenge to answer to, as this is not the tribunal’s business, he said.

Proceeding.

zelda.venter@inl.co.za