Eastern Cape Judge President’s eggplant and banana emojis had ‘sexual connotations’, tribunal told

A forensic linguist said on Tuesday that Eastern Cape Judge President Selby Mbenenge’s use of banana, peach, eggplant and dripping syringe emojis had “sexual connotations” and indicated that he wanted to be intimate with her.

Dr Zakeera Docrat was giving evidence before the Judicial Conduct Tribunal probing allegations of gross misconduct against Mbenenge following a complaint of sexual harassment lodged by Andiswa Mengo.

Their WhatsApp exchanges – many of them subsequently deleted by Mbenenge – were introduced into evidence by Mengo earlier this year.

She testified that Mbenenge’s advances were unwanted and her responses – often with “hysterical laughing” and “embarrassed monkey” emojis – were because she did not know how else to react to his advances, as he was her boss.

Mbenenge, through his counsel, has admitted sending some of the messages and claims the relationship was consensual. However, he has denied sending her a picture of his penis or asking her for oral sex in his chambers.

Mbenenge is expected to call his own “emoji” expert and on Tuesday his advocate, Griffiths Madonsela, told the panel that while they accepted Docrat’s qualifications, they disputed her expertise in emojis.

She told the panel she had an LLB and a PhD in linguistics – degrees she had obtained at Rhodes University – and she was a forensic and legal linguist and researcher.

During one of her courses, she had specifically studied socio-lingustics, its social context and how it can be applied to different languages and cultures. Her focus was on isiXhosa. She said her analysis had been made easier by Mbenenge and Mengo both being isiXhosa speakers.

She said that during her analysis of the large volume of WhatsApp messages, she detected a pattern where the messages between the two would start as polite, professional and courteous.

“That’s how most of the days started, and then it slowly degenerated where emojis were used to convey sexual acts, or sexual emojis were used,” she said.

Asked about the emoji of a peeled banana which Mbenenge had sent to Mengo, she said: “A banana is a fruit. That is the standard use for it. But in this context, and the fact that he previously asked for a BJ, oral sex, it depicts a circumcised penis.”

It is alleged that Mbenenge also used eggplant and peach emojis in a message which he deleted but Mengo managed to save before he did.

Again, Docrat said, the eggplant is a vegetable and the peach is a fruit “but in this context they were used to reflect a desire for intimacy”. The eggplant was the penis and the peach a vagina.

She said this was clear because “they were not drawing up a shopping list”.

She said the meaning behind these emojis, in certain contexts, had been accepted by international scholars as having sexual connotations, to the extent that Facebook had banned the use of the eggplant emoji because it did not want people to feel uncomfortable.

Prior testimony by Mengo was that she was once booked off sick. Mbenenge had messaged her and asked if he must “come and give you a boost” with a syringe emoji with a drop of red liquid.

Docrat said in the context of the messages, it could not be viewed as being “a medical injection”, but rather it represented a penis.

Mbenenge’s use of “pervy eye” emojis indicated “desire and want”, she said.

In response to his message “is long tom ok for you”, to which Mengo replied “ofcoz” (of course), Mbenenge had responded with three emojis licking their lips. Docrat said this too indicated desire and attractiveness.

She said she had noted an “established pattern” that Mengo would respond to the messages in an automatic fashion with a series of “rolling on the floor” laughing emojis and “embarrassed monkey” emojis.

“We are seeing a pattern where she uses the laughing face emoji with tears of joy repetitively. Often they were used in contradiction to what she had written or what he had sent her. But she resorted to this on many days. It was a standard approach. She was laughing him off.”

She said some of Mengo’s responses could have been seen as “playful” and flirtatious, and that Mengo had sent Mbenenge hugging emojis.

Under cross-examination, panel chair Judge Bernard Ngoepe asked Docrat whose opinion on the meaning of the emojis should prevail, particularly in circumstances where Mengo had, in evidence, ascribed a meaning.

“My interpretation is a subjective opinion informed by literature and research expertise. Ms Mengo could have had a different understanding of what she sent… In such circumstances, Mengo’s opinion must prevail.”

She said she had not heard Mengo’s oral evidence, she had never met her and she had not seen Mbenenge’s statement in the matter.

Madonsela put it to her that she had “drawn inferences and conclusions” from the messages which, he suggested, neither Mengo or Mbenenge would agree with.

“Surely it was important for you to formulate an opinion on an emoji, to know what the recipient intended the emoji to mean,” Madonsela said.

Docrat said she had a sufficient data set of the messages to interpret the emojis.

Madonsela handed in a document from the Unicode data laboratory which he said “contained the latest emojis” and which ascribed certain names to them and descriptions of them.

The “rolling on the floor” emoji was associated with “funny, happy, ha ha, hilarious”, for example.

“It will be our experts’ view that every emoji throughout the world has an emotion and a feeling, expression that is associated with it,” Madonsela said.

Docrat said she did not dispute that. But there was no standardisation for most emojis and context was key.

Cross-examination is expected to continue on Wednesday. DM

First published by GroundUp.