Judge Hlophe’s statement was misinterpreted, language guru tells tribunal

A language expert says there is “absolutely no evidence” to suggest controversial Western Cape Judge President John Hlophe was trying to influence then acting Constitutional Court Justice Chris Jafta when he told him sesithembele kinina in 2008.

The isiZulu phrase loosely translates to “we put our confidence in you” and Hlophe’s use of it in the conversation in question forms part of a complaint of gross misconduct levelled against him over allegations he was trying to use his sway to curry judicial favour for Jacob Zuma who, at the time, had a number of cases before the Constitutional Court.

But, says Professor Langalibalele Mathenjwa, the allegation that the phrase was intended to influence Jafta is, in his opinion, “far-fetched” and Hlophe was only expressing his trust in the country’s apex court to deal with Zuma’s cases properly.

The judicial conduct tribunal set up to probe the allegations against Hlophe finally kicked off on Monday when Mathenjwa – one of Hlophe’s witnesses – was the first to take the stand.

Much of Mathenjwa’s evidence focused on a lengthy report he had compiled for the judge president’s team, in which he went so far as to suggest the phrase was, in fact, incomplete.

“As an expert, I think if I may complete the phrase, Judge President Hlophe was saying: sesithembele kinina ukwenza ubulungiswa – we put our confidence in you to uphold justice,” Mathenjwa said in the report.

He said the phrase could be interpreted in five different ways – “we put our confidence in you,” “we have faith in you,” “we put our trust in you or we trust you,” “we rely upon [or on] you,” and “we are pinning our hope on you”.

But he described it as “vital” to drill down to Hlophe’s intentions at the time, as well as to Jafta’s own interpretation.

To this end, he pointed to Hlophe’s position that the Constitutional Court was “anyone’s last hope in any litigation” and said he and Jafta had had a “common understanding” of the phrase.

“I found it being explained on different occasions that it was not meant to influence anyone but only advancing the confidence, trust, faith, reliance and hope that Judge President Hlophe had [Justice Jafta],” Mathenjwa said.

“I agree with the fact that the judges of the Constitutional Court were indeed the last hope in upholding justice – much as this is not the English translation of sesithembele kinina, but in terms of context in this matter it means just that.”

Mathenjwa highlighted the long-standing relationship between Hlophe and Jafta, dating back some 25 years.

“In all these years, their friendship has been healthy in the sense that it even involved their wives, who also became friends. There is no mention of any fallout that could lead to mistrust. There is also no mention of a scenario where one person ever badly influenced the other. All along, their relationship has been at a professional level where they discussed work related issues as well as matters in general,” Mathenjwa said.

He also said, in his opinion, it appeared Jafta had not wanted to lay a complaint against Hlophe and that “somebody else” had been stoking the fire, “using the conversation that was well understood by the two people who were involved”.

But Mathenjwa came under fire from advocate Gilbert Marcus – representing all of the Constitutional Court justices who originally lodged the complaint against Hlophe, except Jafta and now retired Justice Bess Nkabinde, whom he also stands accused of having tried to influence.

“Do you accept the only person who can give evidence as to how he understood the phrase is Justice Jafta?” Marcus asked him, to which Mathenjwa eventually conceded he could not deny.

Marcus also quizzed him about his conclusions regarding Hlophe’s intentions.

“It’s the job of this tribunal to decide what the judge president intended.

“Your expertise is in language, not psychology,” he said.

The tribunal is set down for the rest of the week, with Jafta and Nkabinde expected to take the stand on Tuesday.

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