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Constitutional Court judges Chris Jafta and Bess Nkabinde did not lodge a formal complaint against Cape Judge President John Hlophe, a tribunal heard on Monday.
"Where does this tribunal go from here when the two most important judges (Jafta and Nkabinde) in this matter are saying we are not coming because there is no complaint," Courtenay Griffiths, for Hlophe, asked.
"Both... made it clear they were not planning to pursue a complaint."
The Judicial Service Commission (JSC) tribunal hearing into a complaint of judicial misconduct against Hlophe started in Johannesburg on Monday.
In 2008, the two judges alleged Hlophe approached them while they were considering a corruption case involving President Jacob Zuma and arms company Thint in the multi-billion rand arms deal.
The justices regarded discussing the case with them as an attempt to improperly influence its outcome and a complaint was lodged.
Hlophe, affronted that the judges had sent a copy of the complaint to the media before he had time to respond to it, laid a counter-complaint. A lengthy stop-start parallel process of JSC hearings and court challenges ensued.
The matter was ultimately heard in the Supreme Court of Appeal with rulings in favour of Western Cape premier Helen Zille and lobby group Freedom Under Law.
Last October, Chief Justice Mogoeng Mogoeng said he would formally appoint tribunal members.
Hlophe faces impeachment if found guilty.
Gilbert Marcus, SC, for the Constitutional Court judges excluding Jafta and Nkabinde, on Monday said all the court's judges lodged a complaint. Marcus said six Constitutional Court judges, which included then Chief Justice Pius Langa and Deputy Chief Justice Dikgang Moseneke, testified in a 2009 JSC hearing on the matter.
"All the justices who testified under oath confirmed that they were complainants. Chairperson, I give you my assurance that the statements from all the judges are on the same line," he said, addressing retired judge Joop Labuschagne.
Evidence leader Xoliswa Khanyile told the tribunal that the complaint was a collective decision.
Griffiths questioned why, if the decision to lodge a complaint against Hlophe was a collective one, were Jafta and Nkabinde being represented separately from the other judges at the tribunal.
"(The tribunal) is dependent on the initial two and yet those two appear to stand in a different position to the rest."
According to a 2009 joint statement by Jafta and Nkabinde the two said they had not lodged a complaint against Hlophe and did not intend on doing so, said Griffiths.
"What impact does that position have on the alleged collectivity of the complaint?" he asked.
"The question is, how do we get out of this hole?"
Griffiths said he wanted Moseneke to come to the tribunal and answer questions relating to the joint complaint.
Monday's proceedings saw lawyers arguing about the absence of affidavits, in line with the JSC Act amended in 2010.
Griffiths said should someone decide to complain about a judge, that person should be willing to "put their name to it".
Marcus argued that this was not a prerequisite because the JSC had an obligation to investigate any complaint made against a judge.
The tribunal was set to continue on Tuesday when Selby Mbenenge, for Jafta and Nkabinde, would make submissions about a technical oversight.
Earlier, he argued that the justice minister had to publish the rules for the tribunal's proceedings in the Government Gazette, in terms of the JSC Act.