AUTHORS: SAIURI SEETAL AND HLENGIWE SKOSANA
PUBLICATION DATE: JULY 17,2025
Social media has become deeply woven into our professional lives. From WhatsApp messages between colleagues to emojis peppering emails, these tiny symbols are now part of how we communicate tone, humour, approval, or even disapproval at work.
The question that arises is what happens when emojis are misunderstood or misused? Could a seemingly innocent “thumbs up” or “smirking face” cause someone to face disciplinary action? As communication shifts to include more visual shorthand, the law is now being called upon to interpret these symbols with increasing frequency and seriousness.
Emojis often serve the same function as tone in spoken language. They clarify intention, soften directives and express emotion. Yet, unlike verbal tone, emojis lack a consistent or universal meaning. The same icon can mean contrasting things depending on the sender, recipient and context. For instance: A manager sends a smirking face emoji after a tense meeting. To one employee, it might seem like humour; to another, it could feel like mockery or passive-aggressive bullying.
This interpretive ambiguity creates fertile ground for miscommunication and in some cases, misconduct.
Pursuant to South Africa’s Employment Equity Act (EEA) employers are required to ensure equal, dignified treatment in the workplace. Communications (whether in person or digital) that reinforce negative stereotypes, exclusion or unwanted sexual conduct may amount to discrimination or harassment.
Under the EEA and related workplace policies:
- Harassment can be verbal or non-verbal, including conduct expressed digitally.
- Even a single emoji, in the right (or wrong) context, could support a finding of harassment, especially if it has sexual, threatening, or discriminatory connotations.
In January 2023, Ms. Andiswa Mengo, a judges’ secretary at the Eastern Cape High Court, filed a complaint of sexual harassment against Judge President Selby Mbenenge.
The complaint, lodged with the Office of the Chief Justice and referred to the Judicial Conduct Committee, alleged unwanted advances- both in person and via WhatsApp. Central to the complaint were emojis Mbenenge allegedly sent to Mengo: including 🍑 (peach), 🍆 (eggplant), 🍌 (banana), and 💉 (syringe). These were alleged to have sexual undertones in the context of their exchanges.
Forensic linguist Dr Zakeera Docrat, testifying before the Judicial Conduct Tribunal, stated:
“While the eggplant and peach are a vegetable and fruit respectively, their use in this context signified intimate body parts, especially as they followed previous sexually explicit conversations.”
Even the syringe emoji, sent when Mengo was booked off sick, was argued to have had sexual implications: “In the context of the preceding messages, this was not a medical reference. It indicated something else entirely.” Mbenenge proposed to give Mengo a “boost”, however in understanding the meaning of the use of the syringe in the context of this matter, this was entirely improbable due to the fact that Mbenenge is not a medical practitioner, thus was not in a fit position to literally do so.
Mbenenge denied non-consensual intent and claimed the relationship was mutual- but the inquiry remains a landmark in recognising that emojis, when misused, can amount to sexual harassment.
The Mbenenge matter illustrates a critical principle in interpreting emoji use: context determines meaning. Emojis are not legal hieroglyphs with fixed definitions. Even their Unicode identifiers (e.g., U+1F602 for 😂 “Face with Tears of Joy”) don’t guarantee universal interpretation.
As Dr Docrat explained, cultural norms, relationship dynamics and previous interactions all colour how these icons are received. A “😍” emoji between close friends may seem affectionate; the same symbol from a manager to a subordinate may be professionally inappropriate. Dr. Docrat also went further that the emojis were tantamount to harassment as Mbenenge was not providing a shopping list when he sent Mengo the emojis.
Workplace sexual harassment does not require physical contact. It includes:
- Unwanted sexual attention, including suggestive messages, jokes, and non-verbal conduct
- Use of emojis, images, or symbols with sexual connotations
- Quid pro quo, where job benefits are linked to sexual cooperation
- Conduct that impairs dignity or creates a hostile working environment
Importantly, even consensual past interactions do not excuse later unwanted conduct. A single offensive message may be enough to constitute harassment, depending on the severity.
Employers have a legal duty under Section 5 of the EEA to take proactive steps to eliminate discrimination-including in digital spaces.
In Edcon Limited v Cantamessa (JR30/17) [2019], the Labour Court dealt with a Facebook post made by an employee while on leave. She was fired for a racially loaded comment referring to former President Jacob Zuma as a “monkey.”
The court ruled that although the post was made off-duty, the employee’s Facebook profile identified her as an Edcon staff member, thus creating a link between her private conduct and her employer’s reputation.
In light of growing digital communication, employers should consider:
- Policy Updates: Develop and revise policies to explicitly address emoji use, social media conduct, and digital communication norms.
- Training: Provide workshops or guidelines on appropriate online behaviour, focusing on the evolving nature of emojis and tone indicators.
- Disciplinary Awareness: Ensure that disciplinary processes take into account the subjective and contextual nature of emojis. In ambiguous cases, consulting a forensic linguist or digital communications expert may be appropriate.
Emojis are more than playful graphics- they are a new kind of digital body language. While they offer nuance and tone, they also introduce the risk of ambiguity, misinterpretation, or misuse. As our workplaces become more digitally connected, the intersection of language, law, and social media becomes increasingly important.
Understanding the legal implications of emojis is no longer optional- it is essential for building respectful, inclusive and legally compliant work environments.
For more insights into workplace law and digital conduct contact Garlicke and Bousfield Inc.
Tel: +27 31 570 5409 Email: saiuri.seetal@gb.co.za
Tel: +27 31 570 5396 Email: hlengiwe.skosana@gb.co.za