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Mbenenge’s second witness’s credibility questioned
The credibility of Eastern Cape Judge President Selby Mbenenge’s second witness came under serious scrutiny at the Judicial Conduct Tribunal currently underway in Sandton.
Dr Vincent Mello, an Information and Communications Technology (ICT) expert, testified that nearly 200 emojis were exchanged via WhatsApp between the judge and his accuser, Andiswa Mengo — with Mbenenge sending 97 and Mengo 69.
But it was Mello’s qualifications to analyse that data that quickly became the focus of intense cross-examination.
Evidence leader, advocate Salome Scheepers, pressed him repeatedly on his expertise, revealing that Mello holds no formal qualifications in emoji analysis, digital communication within a legal framework, or forensic legal linguistics — a critical field when interpreting digital symbols in legal matters.
“You are not an expert in forensic linguistics, is that correct?” asked Scheepers.
“Yes, I am not,” Mello replied.
“You are not an expert in symbiotics of law, is that correct?”
“Yes,” he said.
“Are you an expert in the interpretation and analysis of emojis as part of written communication in legal systems?” Scheepers continued.
“I’m not in the legal space,” Mello admitted.
Despite being introduced as an expert witness, Mello refused to disclose his current employer or any business affiliations, stating only that he was appearing independently. His vague responses drew the ire of tribunal chair, retired Judge Bernard Ngoepe, who had to reprimand him several times for being evasive.
Following a 45-minute adjournment, the hearing resumed with even greater intensity as Scheepers challenged the credibility of Mello’s analysis.
She questioned how he reached his conclusions when key platforms he referenced — Unicode and Emojipedia — define emojis differently.
Scheepers also criticised him for failing to examine the actual devices used by Mbenenge and Mengo.
In a dramatic demonstration, she handed over her own Android phone — said to be the latest model with an updated version of WhatsApp — and asked Mello to test one of his claims in real time.
“You made this remark, to say that when you type ‘running’, the emoji will come up. Please type ‘running’ in that phone, I opened WhatsApp for you,” Scheepers said.
“Nothing comes up, is that correct?” she pressed after Mello attempted to dodge the question with a long-winded answer.
“Well, I can use my phone as well,” he replied.
“Doctor, the question is: nothing comes up — yes or no — when you type the word ‘running’?” she demanded.
Mello responded: “Chair, on this phone (Scheepers’ phone), it doesn’t. But if I were to get another phone — let’s bring our phones, maybe that can help.”
Mbenenge’s legal counsel, advocate Griffits Madonsela, handed over his own phone in an effort to clarify the situation. It was ultimately established that not all devices automatically generate an emoji when a word is typed, undermining Mello’s original claim.
The tribunal has also heard that 189 emojis were exchanged in WhatsApp communications between Mbenenge and Mengo — with the judge president accounting for 51.2% of them and Mengo for 36.1%.
Dr Mello noted that while most emojis appeared to be used appropriately, the peach and eggplant emojis clearly carried sexual undertones.
“I made the observation of two emojis on the document I received, there is the peach as well as the eggplant, and when you go to emojipedia it makes reference to say, a peach would generally represent the bums and the eggplant is the male private part,” he said.
This was not the first time the tribunal was presented with expert analysis on emoji use in this matter.
Two months ago, forensic linguist, Dr Zakeera Docrat, testified that emojis such as the banana, peach, eggplant, and dripping syringe had sexual connotations — suggesting Mbenenge’s intent to pursue intimacy.
Dr Mello has finished testifying and the defense team’s final witness, Unathi Sogoni, has now taken the stand. Written by Lebohang Ndashe
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