Top judge lays tit-for-tat charge
● Eastern Cape judge president Selby Mbenenge has laid a charge of crimen injuria against the Makhanda court official who lodged a complaint of sexual harassment against him.
The charge was confirmed yesterday by national police spokesperson Brig Athlenda Mathe, who said the anti-corruption unit was investigating the complaint against Andiswa Mengo.
Mathe said she would only be able to get further information on the complaint tomorrow.
The Sunday Times understands that on Friday three Pretoria-based police officers arrived at Mengo’s Makhanda office with a warrant to take custody of her cellphone and asking her to submit a statement for “alleged offences of crimen injuria and defamation of character”.
Mengo is understood to have declined to hand over her cellphone or to submit a statement, apart from signing a pro forma statement acknowledging that the three officers had come to her office and told her the reason for their visit.
It is not clear why the police wish to examine the phone.
However, Mengo is understood to have information on the device that supports her complaint and confirms statements she made on social media at the time she lodged the complaint.
Police have previously had access to her phone, when she reported a death threat she had received shortly after lodging the complaint against Mbenenge.
Mbenenge laid the criminal charge against Mengo at the Cambridge, East London police station in early December. It was immediately transferred to national police headquarters in Pretoria.
The Sunday Times has seen a police “callup instruction” issued by deputy national commissioner for crime detection Lt-Gen Shadrack Sibiya on December 23 to officers from various units to investigate a complaint of “threats of judge-president Eastern Cape”.
“The judge president has also made a formal complaint which allegedly emanates from the internal complaint against him within the department of justice. Due to the sensitivity of the matter, the investigation has been escalated at national level for further investigation.”
This week the Judicial Service Commission (JSC) announced it had decided not to recommend Mbenenge be suspended pending the finalisation of a judicial tribunal, which chief justice Raymond Zondo is due to constitute to investigate Mengo’s complaint.
The JSC decision was based on Mbenenge already having been granted special leave by Zondo.
It was strongly criticised by judiciary advocacy and monitoring group Judges Matter as “inconsistent and unfair”, and as appearing to give Mbenenge “special, more favourable treatment”.
Judges Matter co-ordinator Alison Tilley said that given a “pervasive culture” of sexual harassment in the legal profession and in South African society, it was “troubling that the JSC has decided to act inconsistently in this case involving one of the most senior judges ... We are concerned about the chilling effect of the JSC’s decisions on potential victims coming forward”.
JSC spokesperson Mvuzo Notyesi on Thursday denied the commission was giving Mbenenge a free pass.
“The JSC considered that even on special leave it is highly unlikely that there would be an interaction between him and the complainant. And, therefore, the risk that is sought to be addressed by suspension is achieved by the very nature of the leave.”
The complaint has already passed through the hands of three senior judges of the Judicial Conduct Committee, which found that Mengo had established a prima facie case “which, if substantiated, is likely to result in a finding of gross misconduct”.
That finding was confirmed by the JSC on December 1, mandating Zondo to convene the tribunal, and triggering a constitutional provision for the JSC to alert President Cyril Ramaphosa to the possibility that Mbenenge should be suspended.
Notyesi said the JSC was not aware of the criminal charge laid by Mbenenge.
Due to the sensitivity of the matter, the investigation has been escalated at national level for further investigation
Lt-Gen Shadrack Sibiya
Deputy national commissioner, crime detection