With the animated wink of an eye and a bulging thumbs-up, emojis have jumped from popular culture to a standard communication tool that legally holds the same weight as written words.
In the case of Eastern Cape judge president Selby Mbenenge, it was specifically the peach, banana, eggplant and syringe emojis that played a key role in the sexual harassment charges against him.
The Judicial Service Commission (JSC) this week overturned a January finding by a judicial conduct tribunal, concluding that Mbenenge’s conduct toward a junior clerk amounted not merely to misconduct but to gross misconduct — opening the door to possible impeachment.
Everybody speaks emoji, and it’s a language that’s changing and developing all the time. If unacceptable conduct is communicated in emojis, it is considered to be the same as if it is written out in words.
— Emma Sadleir, social media law expert
Leading social media law expert Emma Sadleir described the JSC’s ruling as both a legal correction and a recognition of a rapidly evolving form of communication.
“Everybody speaks emoji, and it’s a language that’s changing and developing all the time. If unacceptable conduct is communicated in emojis, it is considered to be the same as if it is written out in words,” said Sadleir, who recently testified on the meaning of the “amandla” fist-pump emoji during the criminal trial of Duduzile Zuma-Sambudla.
She said emoji meanings were guided by the Unicode Consortium and constantly updated — but also shaped by culture and context.
The Unicode Consortium is a US-based nonprofit organisation that maintains and publishes the Unicode Standard, which ensures that text and emojis display consistently across all digital devices and languages. It acts as a global standard body for software internationalisation, with members including big tech firms such as Apple, Google and Microsoft.
During the Mbenenge hearing, more than 800 messages were dissected in forensic detail. An expert was called to interpret the meaning of emojis such as a banana, a dripping syringe and aubergines — symbols that commonly carry unmistakable sexual undertones.
Andiswa Mengo, a junior secretary, testified that between June 2021 and November 2022, Mbenenge subjected her to unwanted sexual advances — mostly through explicit WhatsApp messages.
We will take this further opportunity to make submissions, as we have noted that this was the first instance in which a sitting judge accused of gross judicial misconduct was not placed on suspension pending the judicial conduct tribunal investigation
— Women’s Legal Centre
Mengo testified about how she had been traumatised. She described removing the judge’s official portrait from outside her office because its presence distressed her and spoke of a constant anxiety about losing her job. Under cross-examination, she was reduced to tears as her credibility was challenged and she was portrayed as a “willing participant” in a consensual “flirtatious relationship”.
This week’s JSC decision has been met with widespread relief in legal circles, activist groups and among digital law experts. It is a vastly different sentiment to the anger that followed the tribunal’s earlier ruling, which many felt had failed to grapple with the power dynamics at play and the evolving language of digital communication.
For the Women’s Legal Centre, which represents Mengo, the JSC’s decision is a watershed moment.
“We will take this further opportunity to make submissions, as we have noted that this was the first instance in which a sitting judge accused of gross judicial misconduct was not placed on suspension pending the judicial conduct tribunal investigation,” the centre said.
It said the case would “have an unprecedented impact on women in the legal profession and beyond”.
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