Forensic and legal linguist and researcher, Dr Zakeera Docrat, confirmed that the context in which emojis were sent to judge’s clerk Andiswa Mengo by Judge President Selby Mbenenge depicted sexual acts. 

This was heard as the Judicial Conduct Tribunal resumed hearings on Tuesday where Docrat analysed context and conversations between Mengo and Mbenenge. 

Mbenenge presides at the Eastern Cape Division of the High Court and was accused by Mengo of sexual harassment, in which she alleges several disturbing communications from him. 

Docrat was the second witness to appear before the Tribunal, giving evidence to the panel.

On Monday, digital forensic investigator and data analyst Francois Möller confirmed that his forensic report resulted in a 433-page report, which was extracted from the specific downloads from both Mengo and Mbenenge’s devices. 

Docrat testified about message exchanges between Mengo and Mbenenge in the emoji context and the interpretations thereof. 

In a summary of her evidence, Docrat said: “Emojis are being used, among other things, as non-verbal communication to sexually harass/harass individuals, groups, and communities as well as incite violence. This forms part of one of the sub-disciplines of forensic linguistics, namely, language as evidence.”

Docrat submitted that she had, since 2018, researched how emojis are used and related this to the South African context, which is multicultural and multilingual. She further added that her expertise stretched to forensic and legal linguistics, and the symbiotics of law linguistics.

Her summary of evidence noted research in the field included in the international context, expert forensic and legal linguists who interpreted emojis within court cases. 

These include the cases of Kinsey v State (2014), where the Court of Appeals of Texas in the USA held that the winking face emoji did not establish consent for a sexual encounter. 

In New Zealand, the Dunedin District Court heard the case of Sloane Cruise Coake, concerning several threatening messages containing emojis that constituted a threat. 

Docrat said: “I have had sight of WhatsApp text messages between the complainant and the respondent, and my expert evidence is based on the interpretation of the WhatsApp text messages as communicated and is before this Tribunal for its consideration. 

“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,” Docrat’s summary of evidence noted.

Interpreting several emojis, Docrat testified that a set of eyes could be interpreted as “pervy eyes”, a hug emoji was interpreted as warmth, while a yellow emoji with a tongue out and closed eyes depicted want or desire, or could be interpreted as “delicious”.

She further submitted that Mengo tended to use the hysterical laughter emoji as an automated response when she made light of a topic or “laughed it off”.

The Tribunal hearing continues on Wednesday. 

chevon.booysen@inl.co.za

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