Cape High Court Judge Siraj Desai is disputing whether a city company - which is linked to a trust headed by Cape Judge President John Hlophe - was properly granted Judge Hlophe's consent to sue him for defamation.
The challenge could result in Judge Hlophe being called to testify about how Oasis Group Holdings obtained permission to sue Desai, some 34 months after it had made a request to do so.
Oasis Group Holdings includes the Oasis Asset Management Company, which is partly owned by the Umlibo Trust headed by Judge Hlophe.
It comprises a unit trust range which includes Sharia-compliant funds for the Muslim community.
Under the Supreme Court Act, Oasis could only take legal action against Judge Desai with Judge Hlophe's consent, which Oasis claim he gave in writing on October 29 last year.
But, in a plea filed at the High Court, Judge Desai refused to admit that "the requisite consent" to sue him was "properly sought or given" and demands that Oasis prove its claim to the contrary.
Oasis issued a R250 000 defamation claim against Judge Desai in November last year, claiming that the judge had made a series of defamatory statements accusing it of fraud and which were calculated to harm its reputation.
Should the company win its case against the judge, he will be able to avoid the damages claim against him by publishing three full-page advertisements in Cape Town newspapers within 10 days of judgment.
The statements were allegedly made during a November 7, 2001 meeting of the residents' association of University Estate, where Judge Desai and his family have lived for 14 years.
Oasis launched legal action last month against the University Estate Residents' Association for allegedly spreading misinformation about its proposed building projects.
The case was found not be urgent and postponed by Judge Hennie Erasmus.
It emerged in papers before the High Court that the November 2001 meeting was held to discuss the proposed development of an Oasis office building in Roodebloem Road, Woodstock.
The proposed building would have been within 100 metres of Judge Desai's home.
In its efforts to have the building site rezoned, Oasis had conducted a viability survey among University Estate residents.
It was Judge Desai's alleged comments on the survey that prompted the company's defamation case.
Oasis claimed the judge had asked them to explain how they had "fraudulently conducted" the survey and allegedly further accused them of threatening and intimidating University Estate residents and being "xenophobic".
He also allegedly said: "You guys are disgraceful."
Oasis says the statements were false, wrongful and defamatory of the company and were meant to be understood that it conducted business in a dishonest manner.
While admitting that he had made "certain statements" during the meeting, Judge Desai's legal representatives claim that he was "under a duty" to make these statements - which they contend were in the public interest - and had "made them in the discharge of his duty".
In addition, Judge Desai's lawyers argue that the judge was "unaware of the falsity of any part of the statements" and did not make them "recklessly" or negligently.
Judge Desai is represented by Schalk Burger, John Butler and Roseline Nyman.