When judges’ secretary Andiswa Mengo used a “ROFL” emoji in WhatsApp exchanges with Eastern Cape judge president Selby Mbenenge, she was doing so as “an automatic response, or to laugh off, or to make the conversation lighter”, said an expert witness at the Judicial Conduct Tribunal on Tuesday.
Expert forensic and legal linguist Dr Zakeera Docrat was testifying in the investigation into sexual harassment allegations against the judge president. Much of the case against Mbenenge is based on WhatsApp exchanges over more than a year, in which emojis feature prominently.
Mbenenge is yet to testify, but his defence to the allegations is that, while the two did have conversations of a sexual nature, these were not unwelcome. If Mengo was uncomfortable with their conversations, this “was not clearly communicated to him”, said his counsel Muzi Sikhakhane SC in cross-examination in January. The meaning of her emojis is therefore important evidence.
Docrat told the tribunal that context was crucial to understanding emojis. When Mengo’s text messages were looked at in context, her laughing emojis signified that she “was trying to change to the tone of the conversation, change it into another direction, based on what the respondent was sending her”.
She said that emojis were developed with a specific encoded meaning by the companies that develop them, but they are used globally in a “non-standardised” way. For example, the “praying hands” emoji was developed as a “high five” emoji, but its meaning changed and it has become used as sign of respect and gratitude.
So while the standardised meaning of the brinjal and peach emojis were a vegetable and a fruit, the brinjal and peach emojis used by Mbenenge in a WhatsApp message to Mengo — when read together with a reference to being “intimate” — were references to a penis and a vagina, she said.
Dokrat said it was important to consider what was said before and after the use of an emoji and to look at the whole exchange, what she called having a “significant data set” — here, the number of text messages.
“If I were to be provided with only five text messages there is no possible way in which I could interpret the emojis and establish a context and understanding of what is the conversation between the sender and the recipient; and the intention of the sender,” she said.
Looking at the whole exchange between Mengo and Mbenenge, the laughing emojis used by Mengo became a pattern and a “digital fingerprint” of Mengo’s.
Evidence leader, Salome Scheepers said when Mengo was asked about the laughing emojis, she testified that she used them because she didn’t know how to respond to him, as her boss. “So that fits in with your interpretation,” said Scheepers.
Docrat said: “Yes, that is correct.”
Docrat also testified that global studies had found that, in 2015, the laughing emoji was the most used emoji globally and that this trend had continued since then. A study had also found that it was “now just used as an automatic response by many people and might have different meanings and understandings”.
Asked by the tribunal’s chairperson, retired Gauteng judge president Bernard Ngoepe, what she meant by this, she replied that it may be used in a joking manner — laughing hysterically rolling on the floor — but it may also be used “as we saw, where you are trying to change the direction of the conversation and laugh things off”.
However, in cross-examination by Mbenenge’s counsel, Griffiths Madonsela SC, Docrat agreed that there were standardised meanings for all emojis — ascribed by the developing companies when the emojis were created. Madonsela suggested that recipients of those emojis were entitled to assume that these were what was meant when they received them.
He said the standardised meaning for the ROFL emoji was given as “crying face, funny, haha, happy, hehe, happy, hilarious, joy, laugh, lol and so on, laughing out loud, ROFL” — it had a particular association with certain feelings, he suggested.
He suggested that if he received the rolling on the floor laughing emoji, and he understood it to have its standard meaning, he was entitled to receive it that way. “I’m not disputing it,” she said.
Madonsela also said the meanings Docrat had given to some of Mengo’s emojis were different to what she had herself said in her own testimony before the tribunal. Her cross-examination will continue on Wednesday.
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