Judge Mbenenge’s counsel suggests complainant was a willing participant in texts of sexual nature:
Counsel for Eastern Cape judge president Selby Mbenenge on Tuesday began cross-examining the colleague who has accused him of sexual harassment, and put it to her that she was dishonest in her complaint and in her testimony about her role in their relationship.
Muzi Sikhakhane SC told Andiswa Mengo that her responses to text messages from Mbenenge that she qualified as “disgusting” were not those of an honest complainant who was repulsed by his crude sexual advances.
Sikhakhane paused for some time on a laughing face emoji Mengo sent in response to a sexually solicitous message from Mbenenge.
He said this contradicted her earlier testimony that she was repulsed by his request for oral sex, after asking her not only what she understood by the judge’s abbreviation of the slang word for the act but to describe what it entailed.
Sikhakhane said because Mengo had previously testified that when she had received the emoji from Mbenenge in an earlier exchange, she read it as meaning the subject they were discussing at that time was “a laughing matter”.
Therefore, he said, she was fully aware of what the emoji conveyed and was entertaining Mbengenge’s advances by replying with the same in a sexually-charged exchange in which he had suggested fellatio.
Mengo has, in seven days of testimony to a judicial conduct tribunal, been questioned at length by evidence leader Salome Scheepers about her responses to Mbenenge’s relentless pursuit, which he has said was “playful”, “flirtatious” and consensual.
She conceded that although she rebuffed him in no uncertain terms a number of times, at others she appeared to go along with the overt sexual tone of the texts. Mengo said she did so after realising that her rejection had no effect and had hoped that by responding as he plainly hoped, she would be left in peace.
The record shows this approach did not work because Mbenenge did not relent.
Much of the testimony has revolved around messages the judge president subsequently deleted. Mengo testified that he frequently sent pictures of his genitalia, as well as pornographic images, from which he invited her to choose her preferred position during intercourse.
She testified that in one instance, after months of such messages, she had forwarded one to a colleague in the division who immediately asked whether it came from Mbenenge because he had a reputation for such conduct.
She said she did so both for the sake of preserving evidence, because he had taken to deleting compromising messages, and to communicate to someone what she was enduring.
But Sikhakhane submitted that regretting that Mbenenge was deleting messages was not the behaviour of someone who did not wish to receive messages of this nature.
He also raised a text message Mengo sent to Mbenenge on Father’s Day in 2021. It was one of the few instances where Mengo had initiated a WhatsApp interaction with the judge president.
Asked by Scheepers why she had thought of texting Mbenenge early on a Sunday morning to wish him a happy Father’s Day, Mengo replied that he was “a father after all”. She had also sent wishes to other judges in the division.
But Sikhakhane noted that Mengo had addressed Mbenenge by his clan name, and said doing so amounted to employing a term of endearment.
“We have travelled a little distance with all disgusting things. You have not communicated your disgust.”
Mengo replied, speaking through an isiXhosa translator: “Yes.”
Sikhakhane continued: “In fact then for all the instances where you want the panel to understand were disgusting, you have actually responded with a response revealing the opposite.”
He said she had omitted in her initial complaint to a judicial conduct committee of the Judicial Service Commission the large number of messages in which she did not disparage the respondent’s conduct, but reciprocated with unambiguous sexual innuendo.
“Madame, the theme I have been running with you is that you do not communicate in this theme what you were saying and communicating, particularly the disgusting parts and those where you expressed endearment, you don’t,” he said.
“It is because you do not want to show the endearment you were expressing.”
It has been expected that Sikhakhane would hone in on Mengo’s equivocation between rejection and indulgence, and would argue that she was encouraged to bring a complaint to persecute a senior member of the judiciary.
Mbenenge is the first judge to risk impeachment for sexual misconduct. But, as Sikhakhane stressed, this will turn on whether the interaction, which stretched from June to November 2021, was consensual.
The 37-year-old single mother has told the tribunal that, given the power discrepancy between her and the head of the division where she worked as a secretary, she felt vulnerable and demeaned.
When asked on Tuesday by her legal counsel, Nasreen Rajab-Budlender, what effect the experience has had on her, Mengo said she felt stripped of her dignity.
She added: “Socially, I cannot even hold a relationship.”
Asked how the interaction with Mbenenge affected her work, Mengo said she was no longer as productive as before.
The cross-examination is to continue on Wednesday.
Want to boost economic growth? Improve mining infrastructure:
Infrastructure is a bellwether of a country’s potential for economic growth.
Governments that spend on infrastructure give themselves the best chance to succeed, while underinvestment restrains inclusive economic prosperity.
Mining is directly impacted by a country’s infrastructure and ability to move products, key equipment, materials and goods from source to market.
A large number of African states are visceral examples of these maxims. Many have failed to improve or maintain infrastructure to match population growth rates and economic needs. Growing populations and other demands have stretched the public fiscus, making it increasingly difficult — to the point of being unaffordable — for governments to fund infrastructure on their own.
For the continent to grow, it must address the problems stymying development and set up the necessary legal structures, regulatory frameworks and financing mechanisms to bridge Africa’s infrastructure gap.
Africa’s infrastructure deficit and its link to mining
The scale of the problem facing infrastructure development across Africa’s different markets is stark. While the mining sector has, in many respects, helped to develop key infrastructure in markets ranging from South Africa to the Democratic Republic of the Congo (DRC) and Zambia, this infrastructure is often purpose-built and does not support the wider economy.
According to the African Development Bank, the continent must invest $ 130 billion to $ 170 billion annually indevelopment to close its infrastructure gap. But investment has only ranged from $ 68 billion to $ 108 billion annually in the past few years.
About two-thirds of the continent’s people have road access, with transport costs often double compared to other developing markets. Only 30% of Africa’s population has regular access to electricity, with water and internet access below 10%.
Beyond physical infrastructure, regulatory and legal red tape and corruption continue to hobble policy efforts, with Transnet’s woes in South Africa and the continued delay of the Simandou iron ore project in Guinea indicative of such instability. For countries that depend heavily on mining as a percentage of exports, like Guinea (87%), Mali (85%), Zambia (79%), and the DRC (77%), infrastructure gaps and delays can prove terminal to efforts to develop their wider economies.
Red tape
The scale of the problems facing Africa’s economies and mining sectors highlights the need for a globally competitive infrastructure platform that can enhance mining sector growth continent-wide. Getting there means addressing the legal problems that inhibit infrastructure developments at the source.
These include poorly drafted legislation; the inconsistent application of law and policy; a lack of policy certainty and changes in the regulatory environment ranging from ministerial appointments to key leaders of regulatory bodies.
The above issues can drive up the cost of infrastructure development significantly, with time a casualty as much as capital. Governments must ensure the correct policies, regulations and legal structures are in place — and enforced — to support the development of infrastructure which is vital to the long-term prospects of the mining industry.
These essentials range from a functioning mining cadastre system, national standards and legislation to an overarching vision or strategy squarely focused on infrastructure development to tie all activity together.
When regulations, standards and legislation are devised, beyond their local implications, governments need to consider how they interact with international agreements, conventions and trade.
Financing and legal consequences
Mining companies have been able to play an outsize role in developing infrastructure in Africa due to their historical access to finance, access that African countries have traditionally struggled with.
Over time, mining companies and governments have sought different solutions to developing infrastructure where interests align, using several vehicles to do so, each with specific legal restraints:
- Public-private partnerships must account for existing laws and regulations, with private sector considerations often clashing with public sector policies and law, with disputes difficult to resolve without a dispute mechanism. Competition law and separation of powers is another fact composite to most public-private partnerships.
- Green bonds have no single, definitive definition or mechanism, while compliance and due diligence demands, plus the lack of specific rating standards, can make them administratively onerous.
- Multilateral financing must comply with both local and international law, not undermine the sovereignty of the host state or lead to corruption and can be at the mercy of prevailing international market conditions.
- Leveraging favourable trading regimes, such as the African Continental Free Trade Agreement (AfCFTA), to maximise the benefit of lower tariffs and reduced cost of doing business, keeping an eye on key jurisdictional relationships where cooperation is needed.
To attract infrastructure investment, governments and mining companies should create an enabling environment that eliminates these constraints by:
- Working together to create a harmonious and consistent relationship, with predictability highly attractive to foreign and local financiers and investors.
- Removing costly bureaucracy and implementing policies that increase competitiveness and make their mining sectors attractive for greater investment.
- Partnering with key local and international institutions to underwrite the financial stability of a project, while leveraging regional and international trade agreements where relevant.
- Strategically targeting infrastructure bottlenecks that constrain economic growth and, if removed, accelerate infrastructure development.
International financial institutions such as the International Monetary Fund (IMF) and World Bank, for example, can provide a key source of finance for infrastructure development, with mining a vital part of the conversation as a key economic sector. However, working with these types of organisations means paying heed to the legal frameworks that govern them, such as the IMF Charter and regulations and the World Bank’s approach to identification systems within public-private partnerships.
Cross-border and regional opportunities
Outside of major international institutions, regional cooperation and legal integration can provide a significant fillip for infrastructure development and mining sector growth. The AfCFTA recognises the important role played by the continent’s regional trade blocs such as the Economic Community of West African States and the Southern African Development Community (SADC).
Infrastructure projects developed across borders can be advantageous to participating countries, driving economic growth in each market while benefiting the region. Governing these relationships are regulations and agreements that ensure that each actor is accountable for their specific inputs and ensuring such relationships are conducted with fairness in mind. An example is the Lesotho Highlands Water Project, which is managed by the Lesotho Highlands Development Authority and is designed to provide Gauteng with water while generating electricity for Lesotho.
The legal framework governing the project is drawn from the 1986 treaty signed between South Africa and Lesotho, which has since been amended with several protocols, a second bilateral agreement and the development of the Lesotho Highlands Development Authority and the Trans-Caledon Tunnel Authority in South Africa.
If designed with intention, cross-border projects can support the mining sector as well as their host economy through the provision of key resources and access to legal and financial expertise, enhancing mining profitability and sector viability.
Maximise economic and mining synergies
With the right strategies and collaborations in place, governments and the mining industry can proactively source the legal expertise needed to formulate the necessary policies and programmes.
The dynamics between the state, the mining sector and infrastructure development are complex. Programme conceptualisation must consider the different legal risks and structures applicable to each.
If done so correctly, and consistently, further opportunities to work with international and regional financiers and partners could arise. At each step, a cohesive legal strategy, which includes efficient cross-border transfer mechanisms, is needed to foster collaboration between governments, the private sector and regional bodies.
As it stands, with the various SADC protocols and the AfCFTA, we still witness long queues of trucks at various land borders, which not only increases the price of doing business but also the chances of corruption. The solution to this can only be achieved with the political will and collaboration between the different members of SADC.
The theme of the 2025 Mining Indaba, to be held in Cape Town in February, is “Futureproofing African Mining, Today”. This serves as a reminder that innovative financing mechanisms and collaborative frameworks hold the key to unlocking infrastructure potential and positioning Africa as a global mining leader. There is no doubt that the region can achieve more.
Nomsa Mbere and Rita Spalding are partners at Webber Wentzel.
Overcrowding in SA prisons exacerbated by ‘huge number of foreign nationals’:
South African prisons had an overcrowding rate of 48% in the 2023/2024 financial year, housing 156 000 inmates but only having approved bed spaces for 105 474, correctional services portfolio committee chairperson Anthea Ramolobeng said on Tuesday.
She also expressed “shock” at the number of foreign nationals who were inmates in the country’s prisons, saying that by the end of March 2024 “the department incarcerated 22,612 foreign national inmates, 690 of whom are serving life sentences”.
The department spends R500 per day per offender in its correctional facilities, she said.
Ramolobeng made the statements while speaking to media as part of parliament’s weekly committee cluster programme – in this case the peace and security cluster, and how oversight was to be strengthened.
A number of issues contributed to overcrowding, she said, including inmates who were unable to afford bail.
“We saw this at the Colesberg Correctional Centre [during an oversight visit] where there were a number of inmates who [could not afford bail of R1000 or less].”
Remand detainees being held without the option of bail also contributed to overcrowding, as did Section 63A applications due to the nature of the crime committed, previous criminal records, and the involvement in gangs and criminal syndicates.
There were also state patients who should be in mental health institutions but instead were in prisons, she said. The committee was engaging with the department of health and the portfolio committee on health on this issue.
Overcrowding was also exacerbated by “the huge number of foreign nationals in our facilities”.
Ramolobeng said that in October last year, the committee undertook an oversight visit in Gauteng, where it found that at Emthonjeni Youth Correctional Centre in Baviaanspoort, of the 525 juvenile offenders, 400 were foreign nationals.
“The committee also found 2 912 foreign national inmates in Modderbee Correctional Centre, while in Kgosi Mampuru Correctional Centre, there were 2 394 foreign nationals, and in Johannesburg Correctional Centre there were 4 079 foreign national inmates,” she said.
She said that to address overcrowding, the department was implementing an “eight point strategy”, which included:
– Managing the levels of awaiting trial detainees through the integrated case management task team and the intersectoral committee on child justice.
– Managing the levels of sentenced offenders by improving the use of community corrections, supervision, release on parole, and transferring inmates between correctional centres to “establish some kind of evenness” of overcrowding.
– Encouraging debate on incarceration as a sentence and encouraging appropriate sentences that focus more on rehabilitation, self-sufficiency and offender labour.
– Implementing the self-sufficient and sustainable framework to increase work opportunities for offenders and equip them with market-related skills as part of their rehabilitation.
– Using offender labour for day-to-day maintenance and renovation of correctional facilities, reducing reliance on the department of public works.
– Engaging with the department of health to address the issue of mental health patients being incarcerated in correctional facilities instead of being in mental health institutions.
– Addressing the issue of foreign nationals in correctional facilities, which was a “dire concern” for the department.
Contraband
Ramolobeng said that contraband flooding into correctional centres remained a serious concern, “particularly as the number of investigations and the number of officials disciplined did not correlate one another with the amount of contraband found in each management area or in facilities”.
For instance, she said, in the Johannesburg management area, 1393 cellphones were found between July and September 2024, but only 48 formal disciplinary cases were registered, 84 investigations conducted, and 25 suspensions implemented.
“In Kgosi Mampuru II, 1 700 cellphones were found between April and September, while in Leeuwkop, 63 cellphones were found between May and July.”
The committee would be conducting an “unannounced” oversight visit in KwaZulu-Natal between February 24 and 28, she said, adding that she would not disclose which facilities would be visited, so that no “preparation” could take place.
The committee was “putting our foot down” in 2025, she said, and would ensure accountability.
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