Western Cape Judge President John Hlophe Picture: Dumisani Sibeko.

Johannesburg -

Two Constitutional Court judges have filed a high court application to review a tribunal hearing into a complaint of misconduct against Western Cape Judge President John Hlophe, the Judical Service Commission (JSC) said on Monday.

Spokesman Sello Chiloane said the application by Judge Chris Jafta and Judge Bess Nkabinde was filed in the High Court in Johannesburg on Friday.

“We only received it at 3pm (on Friday).” he said.

The JSC tribunal was postponed indefinitely on October 8, following a request by Selby Mbenenge SC, for Judge Jafta and Judge Nkabinde, for the tribunal's reasons to continue its hearings despite their objections.

Judge Jafta and Judge Nkabinde indicated that they intended asking for a high court review of the decision to continue with the tribunal hearing.

At the time, Mbenenge said Judge Jafta and Judge Nkabinde asked the tribunal, sitting in Kempton Park, east of Johannesburg, to excuse them from appearing and testifying pending the launch and finalisation of the high court review.

“They are not bent on delaying these proceedings. At this stage they are not seeking a postponement. All they are saying... is let us be excused from appearing and testifying.”

He said they were concerned about appearing before a tribunal that was illegitimate.

The tribunal ruled on October 3 that the misconduct hearing should proceed, despite objections by Jafta, Nkabinde, and Hlophe.

During the hearing into the tribunal's legitimacy, Mbenenge submitted that it was not properly appointed, that its rules were invalid, and that there was no complaint to investigate.

He contended that Judge Jafta and Judge Nkabinde were entitled to raise the defence that they were not obliged to subject themselves to the proceedings.

In 2008, Judge Jafta and Judge Nkabinde 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 heard in the Supreme Court of Appeal with rulings in favour of Western Cape premier Helen Zille and lobby group Freedom Under Law. - Sapa