By Lehlohonolo Lehana.
Evidence leader in the judicial conduct tribunal investigating allegations of sexual harassment against Eastern Cape Judge President, Selby Mbenenge, has asserted that it’s incorrect to suggest that the top judge and high court secretary, Andiswa Mengo, always used emojis with the intention to convey the standardised meaning attached to to them.
Advocate Salome Scheepers began with her cross-examination of information communications technology (ICT) expert, Dr Vincent Mello, before the fact-finding body in Sandton, Johannesburg.
Mello is the second witness to be called in defence of the senior judge in the misconduct probe against him after Mengo accused him of making unwanted sexual advances towards her between 2021 and 2022, mostly on the social media platform WhatsApp.
During the second sitting in May, linguistics specialist Zakeera Docrat testified that emojis had been used for non-standard purposes to depict sexual acts and as a means to sexually harass.
Mello told the tribunal that his interpretation revealed the contrary and said his findings relied on the Unicode Consortium standards and Emojipedia, an online reference site that catalogues emoji definitions.
This contrasts with Mengo’s own testimony, in which she described persistent late-night messages, requests for photos and a sense of pressure due to Mbenenge’s powerful position. She said his messages were unwanted and inappropriate but she felt unable to challenge him.
Under cross-examination by Mbenenge’s counsel, Griffiths Madonsela, Mello said that in his analysis of the WhatsApp exchanges, he counted 189 emoji used — 97 by Mbenenge and 69 by Mengo.
He told the tribunal that the “rolling on the floor laughing” emoji was used 27 times by Mbenenge and 28 times by Mengo. The “see-no-evil monkey” emoji was used 24 times by Mbenenge and 20 times by Mengo. The “winking face” was used twice by Mbenenge and once by Mengo.
Other emojis in the messages included the “thinking face” and “face with tongue” — both used by Mbenenge — and the “flushed face” and “squinting face with tongue” used by Mengo.
Mello interpreted these emojis as casual and in line with standard use.
He also noted the use of the “peach” and “eggplant” emojis — widely regarded as suggestive symbols for buttocks and male genitalia, respectively — while notable, could not be attributed any specific intent.
Mello further testified that a portion of the WhatsApp messages exchanged between the two — from 22 June to 8 July 2021 — was missing from the record, making the communication incomplete.
He suggested that the missing messages raised questions about the integrity of the evidence.
The WhatsApp messages have been a central feature in the case, which has grappled with interpreting the tone and content of the digital exchanges between Mbenenge and Mengo.
In May, digital forensic analyst François Muller, testified that Mengo had communicated with the judge from two different phones. He confirmed retrieving and restoring data from both devices, which formed the basis of the messages under scrutiny.
However, Mello told the tribunal that he had only examined data extracted from one of the phones — the one provided to him by Mbenenge’s legal team — and not the full set of data Muller had reviewed.
This drew criticism from evidence leader Salome Scheepers, who questioned whether Mello’s opinion was informed by a complete dataset.
Scheepers also challenged Mello’s qualifications, arguing that he lacked the forensic and linguistic expertise necessary to interpret digital evidence, specifically the contextual nuances of emoji use.
Mengo, who testified earlier in the year, maintained that Mbenenge made sexual advances, sent inappropriate messages and exposed himself to her at the Mthatha high court buildings. Her testimony was supported by screenshots and messages, although she admitted under cross-examination that some conversations had continued beyond the alleged incidents.
The defence has argued that Mengo’s continued engagement with the judge — with light-hearted emojis and informal language — contradicts her claims of persistent harassment. The defence said Mengo had reciprocated with messages that reflected a cordial relationship.
Strengthening the defence’s case, Mbenenge’s witness, former secretary Zintle Nkqayi, testified that the judge was not at work at the time Mengo alleges he exposed himself to her. Nkqayi said Mbenenge had gone to the bank and she had subsequently accompanied him to a lecture and to court.