Sexual harassment in the workplace is deeply shaped by power dynamics, a fact that played a pivotal role in the case of Andiswa Mengo and her allegations against Judge Selby Mbenenge, according to gender-based violence specialist Lisa Vetten. Her expert testimony resumed before the judicial tribunal investigating the conduct of the Eastern Cape judge president, following a break in April.
Vetten, drawing on over two decades of work in gender advocacy, stated that South Africa’s 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace was central to her analysis of the interactions between Mengo and Mbenenge. Her assessment offered insights into how workplace hierarchies and the fear of retaliation significantly affected Mengo’s ability to respond freely to alleged harassment.
Allegations Against Judge Selby Mbenenge
Judge Mbenenge is accused of sexual harassment, including sending explicit messages via WhatsApp and exposing himself in his chambers. These allegations came to light during Mengo’s tenure as court secretary at the Mthatha High Court. The tribunal, which continues through July 11, is evaluating whether Mbenenge’s conduct amounts to gross misconduct, which could lead to his impeachment.
The alleged harassment occurred between June 2021 and February 2022. During this period, Mbenenge reportedly sent 526 messages, compared to Mengo’s 311 replies. These included a request for nude images and repeated inappropriate emoji usage, including the “angel halo” emoji following questionable remarks.
Expert Assessment of Power Dynamics
Lisa Vetten analyzed the full record of their 47-day WhatsApp exchange and noted that Mengo’s responses showed consistent signs of discomfort. In her testimony, Vetten identified six strategic responses Mengo employed to navigate the uncomfortable dynamic:
- Deflection – Changing the subject.
- Deviation – Offering vague or incomplete replies.
- Deferral – Delaying response.
- Silence – Ignoring inappropriate remarks.
- Accommodation – Attempting to placate without encouraging.
- Resistance – Explicitly saying “no.”
According to Vetten, these strategies illustrate how individuals in subordinate positions often cannot afford to reject superiors directly. “Meaningful consent requires freedom of choice,” she said, emphasizing that in hierarchical settings, such as the judiciary, that freedom is often compromised.
Sexual Harassment and Consent in Coercive Environments
Vetten warned that consent must not be judged through an idealized lens. “In reality, people do not always say ‘stop’ even if they feel uncomfortable, particularly when a superior is involved.” She stressed that prior consent to one form of communication does not automatically extend to all subsequent interactions.
Her evaluation concluded that Mengo’s interactions lacked voluntary enthusiasm and instead reflected signs of pressure and fear. In environments where seniority wields influence over careers, even indirect expressions of refusal — like delayed responses or changing the topic — must be acknowledged as legitimate signals of discomfort.
Criticism of the Expert Testimony
However, Mbenenge’s legal counsel, Muzi Sikhakhane, challenged Vetten’s neutrality. He questioned whether her expert opinion was overly sympathetic to Mengo and accused her of venturing into psychological interpretation, which he claimed exceeded the bounds of legal expertise expected in such a tribunal.
“A tribunal cannot rely on an expert who appears to support a specific litigant,” Sikhakhane said. He further criticized Vetten’s failure to include Mbenenge’s affidavit in her analysis, arguing that this omission undermined her objectivity.
Sexual Harassment in Judicial Institutions
The case has sparked broader discussions on sexual harassment in hierarchical institutions, particularly within the legal system. Vetten noted that the judiciary’s formal culture amplifies the vulnerability of junior staff members. The fear of professional repercussions can silence victims and enable perpetrators to act with impunity.
“These aren’t just individual behaviors — they are enabled by institutional dynamics,” she said. The trial continues to highlight the need for systemic reform and awareness in addressing workplace harassment, especially in professions marked by rigid hierarchies.
Conclusion: Towards a Better Understanding of Consent
This ongoing tribunal has become a focal point in South Africa’s efforts to redefine how workplace sexual harassment is understood and addressed. Through expert testimony and legal scrutiny, the Mbenenge case exemplifies the complexity of consent and power dynamics within professional environments.
As more institutions adopt the 2022 Code of Good Practice and promote gender equity, it is hoped that victims like Mengo will find greater support in expressing resistance to unwanted advances — without fear of reprisal or judgment.
For more on this topic, see our article on Workplace Gender Dynamics and our Harassment Prevention Toolkit.
External Resources: Department of Employment and Labour | Wits Gender Equity Office
Published: July 3, 2025 | Author: Investigative Desk
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