John Hlophe. Picture: TREVOR SAMSON
John Hlophe. Picture: TREVOR SAMSON

CONSTITUTIONAL Court justices Bess Nkabinde and Chris Jafta have applied to their own court to reopen a case they are litigating, after it had refused them leave to appeal, a move likely to confound the legal community.

The court’s order — which Jafta and Nkabinde called "erroneous" and "unfair" — was expected to be the end of a case the two had doggedly pursued since 2013, in which they challenged the lawfulness of a judicial conduct tribunal set up to investigate gross misconduct allegations against Western Cape Judge President John Hlophe.

They have asked for the earlier order to be rescinded, which is highly unusual at the highest court and unheard of from the court’s own judges. Their latest application will mean that all disciplinary tribunals will be delayed yet again.

The case has its roots in a 2008 complaint of gross misconduct against Hlophe by all the then justices of the Constitutional Court, including Jafta and Nkabinde.

They alleged that Hlophe had improperly tried to influence the outcome of judgments connected to corruption charges against President Jacob Zuma.

After several stops and starts and intervening litigation, Jafta and Nkabinde were supposed to be the key witnesses against Hlophe at a tribunal. Instead, they challenged its lawfulness.

Their arguments that the tribunal was unconstitutional were rejected by the high court and the Supreme Court of Appeal.

Then last month, the Constitutional Court refused them leave to appeal, saying since so many of its 11 members were conflicted, they did not have a quorum. The Constitution requires that cases before it must be heard by at least eight justices.

Last month’s order was based on an earlier case — that also arose out of the Hlophe dispute — in which the Constitutional Court established the principle that leave to appeal would be refused if a quorate court could not be formed.

In an affidavit filed on Tuesday, Jafta said they wanted the order rescinded because the court had not given them the opportunity to make submissions on the issue of recusal.

"We think that this omission was an innocent oversight on the part of our esteemed colleagues. We have no reason to think that they could deliberately deny us such a basic right," he said.

The failure to hear them on disqualification "rendered the adjudication of our case unfair".

Jafta said if they had been allowed to make representations, they could have distinguished their case from the earlier Hlophe one.

"We could have suggested a practical solution to the issue of a broken quorum …. We believe that it is a handful of justices that are disqualified," he said.

The order was also "tainted by irregularity", he said. This was because the very same justices who were conflicted had nonetheless adjudicated the case by refusing leave to appeal.

Chief Justice Mogoeng Mogoeng and former Deputy Chief Justice Dikgang Moseneke were part of the Judicial Service Commission, one of the parties to the litigation, said Jafta.

The court had, therefore, breached the "time-honoured principle" that no one should be a judge in his own matter, he said.