KEY POINTS
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Dr Zakeera Docrat testified that emojis sent by Judge President Selby Mbenenge to clerk Andiswa Mengo were sexually suggestive and constituted non-verbal harassment.
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The tribunal heard how emojis like ‘eyes’, ‘tongue-out faces’, and ‘hugs’ could imply sexual undertones, with context and cultural understanding playing crucial roles in interpretation.
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The hearing continues as experts emphasise how digital symbols, often overlooked, are gaining legal significance in South African sexual harassment cases.
The Judicial Conduct Tribunal has entered a critical phase as forensic and legal linguist Dr Zakeera Docrat testified about the role of emojis in the ongoing sexual harassment case involving Judge President Selby Mbenenge and complainant Andiswa Mengo, a judge’s clerk.
The tribunal resumed hearings on Tuesday, shedding new light on how digital symbols—once considered harmless—are now central to a serious misconduct case.
Dr Docrat, a respected researcher in forensic and legal linguistics, analysed the WhatsApp conversations between Mbenenge and Mengo.
IOL reports that she concluded that several emojis used in the exchanges were indicative of sexual acts, inappropriate innuendo, and non-consensual communication.
“Emojis are being used, among other things, as non-verbal communication to sexually harass individuals, groups, and communities as well as incite violence,” Dr Docrat told the Tribunal. “This forms part of one of the sub-disciplines of forensic linguistics, namely, language as evidence.”
She emphasised that emojis, despite their playful origins, can carry serious implications in legal contexts, particularly when viewed through a forensic lens.
Dr Docrat’s findings form part of a growing body of evidence exploring the legal significance of emoji usage in both South African and international courts.
Emoji misuse signals legal gray zone in South African courts
Her testimony followed that of digital forensic investigator Francois Möller, who presented a 433-page forensic report based on data extracted from both Mbenenge’s and Mengo’s devices.
According to Möller, this report was pivotal in tracing the digital interactions that underpin Mengo’s claims.
Dr Docrat also provided international parallels, citing the Kinsey v State (2014) case in Texas, where a winking emoji was ruled insufficient to indicate sexual consent. She also referenced the Sloane Cruise Coake case in New Zealand, in which emojis were part of messages deemed threatening.
“Having considered the WhatsApp text messages, my main conclusions as will be presented to the Tribunal are as follows: Emojis have been used for non-standard purposes and have been sexualised; Emojis were used to depict sexual acts, and emojis were used as a means to sexually harass,” she stated.
The tribunal heard that specific emojis—such as eyes, tongue-out faces, and hugs—had been interpreted as sexually suggestive or intimate. “A set of eyes can be interpreted as ‘pervy eyes’, while a tongue-out emoji may imply want or desire,” she said. In contrast, Mengo’s repeated use of the hysterical laughter emoji was described as a coping mechanism to downplay uncomfortable exchanges.
Docrat also highlighted the multicultural and multilingual nature of South Africa, which adds complexity to emoji interpretation.
Her research since 2018 has focused on how such symbols may be interpreted across cultural contexts and legal settings.
Judge Mbenenge, who serves as President of the Eastern Cape Division of the High Court, remains under investigation. He has not yet taken the stand in this phase of the tribunal.
The Judicial Conduct Tribunal is expected to continue its hearings into the matter, with additional witnesses and expert opinions set to be presented in the coming days.
