Judicial Conduct Tribunal highlights contested gendered and cultural understandings of emojis
Much is invested in the process and outcome of the Judicial Conduct Tribunal of Judge President of the Eastern Cape, Selby Mbenenge.
This week, postponing the tribunal until 30 June, the chair, retired judge Bernard Ngoepe, repeated evidence leader advocate Salomé Scheepers' statement at the start of proceedings in February that the matter was 'unprecedented in the history of South Africa'.
The complainant, 40-year-old legal secretary Andiswa Mengo, has accused the head of the Eastern Cape Division, Judge President Selby Mbenenge, 63, of sexually harassing her in a series of WhatsApps in 2021.
At her side is formidable advocate Nasreen Rajab-Budlender, while Mbenenge has advocates Muzi Sikhakhane and Griffiths Madonsela in his corner. Both men, too, are formidable, but in quite a different fashion.
Complicating matters are completely divergent views on gendered, linguistic and cultural understandings of a range of emojis, from eggplants to peaches, from a dripping syringe to 'pervy' eyes, that shot between the Judge President and the legal secretary.
Power dynamics
Most professional workplaces in South Africa have protocols and principles governing the role of leadership in hierarchical structures. This is something Rajab-Budlender has pointed out from the start.
Yet this obvious power imbalance appears not to have moved Mbenenge's legal representatives, who have argued that Mengo had agency. They objected to proposed evidence to be presented by gender expert Dr Lisa Vetten, questioning its relevance.
On Tuesday, Ngoepe ruled that Vetten would be allowed to testify and that he would 'rather err on the side of caution'. The tribunal could decide afterwards whether it was indeed relevant, he said.
Language in pictures
Last week, forensic linguist Dr Zakeera Docrat gave expert testimony with regard on the contexts of the WhatsApps between the Judge President and Mengo and the meaning of emojis.
The YouTube transmissions of the tribunal have been marked 'GRAPHIC CONTENT' as a pre-warning to those watching the live proceedings online.
Docrat had testified that Mbenenge's use of a banana, peach, eggplant and dripping syringe emojis had 'sexual connotations' and indicated that he wanted to be intimate with her.
'This was not a discussion about vegetables.'
Docrat, who speaks, reads and understands isiXhosa, testified that Mbenenge's advances were unwanted and Mengo's responses – often featuring '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 had been consensual. However, he has denied sending her a picture of his penis or asking her for oral sex in his chambers.
The outcome of this tribunal will send a message to women and men about working rights in professional circumstances. In a country plagued by misogyny and patriarchal proprietary inclinations, the ruling must protect those with less agency. DM
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