Chris Jafta and Bess Nkabinde intend asking for a high court review of a decision to continue with a tribunal hearing into a misconduct complaint against Western Cape Judge President John Hlophe.
They asked on Tuesday to be excused from the Judicial Service Commission (JSC) tribunal hearing.
"Our clients seek the indulgence of the tribunal to excuse them from appearing before this tribunal and testifying in these proceedings pending the launch and finalisation of the … contemplated review proceedings," said Selby Mbenenge SC, for the two justices.
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He said they were not bent on delaying the hearing into a complaint of misconduct against Hlophe.
"At this stage they are not seeking a postponement. All they are saying … is let us be excused from appearing and testifying."
He said it was a matter of concern for the two that, if the tribunal was illegitimate, they be subjected to appear before it.
"It may be that an impression is created that our clients are bent on avoiding this tribunal," Mbenenge said.
"They are prepared to testify when called upon by a properly appointed functionary or tribunal."
The tribunal ruled on Thursday that the misconduct hearing should proceed, despite objections by Jafta, Nkabinde and Hlophe.
At the time, Hlophe's counsel indicated that he was prepared to continue, as did counsel for the Constitutional Court judges excluding Jafta and Nkabinde.
However, 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 Jafta and Nkabinde were entitled to raise the defence that they were not obliged to subject themselves to the proceedings.
"Our submission is, crudely speaking, that we must pack and go, all of us. There is nothing to postpone."
At the start of proceedings on Tuesday, the tribunal's president, retired judge Joop Labuschagne, read out a letter addressed to the JSC secretariat about the review.
He said the judges were seeking the reasons for a ruling made by the tribunal on Thursday that proceedings continue.
He said the tribunal had replied that it had considered the letter, and "confirms its decision to give full reasons on the preliminary points raised in our final report to the JSC".
In 2008, Jafta and Nkabinde alleged that Hlophe approached them while they were considering a corruption case involving President Jacob Zuma and arms company Thint in the multibillion-rand arms deal.
The justices regarded this as an attempt to improperly influence its outcome and a complaint was lodged.
Hlophe was affronted that the judges had sent a copy of the complaint to the media before he had time to respond to it, and 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