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Jafta and Nkabinde head to the High Court

The judges don’t want to be part of the tribunal dealing with Judge John Hlophe’s conduct.

The Judicial Service Commission (JSC)’s hearing into Western Cape Judge President John Hlophe’s conduct. Picture: Vumani Mkhize/EWN

JOHANNESBURG - Lawyers acting for two Constitutional Court judges who refuse to be complainants in the judicial conduct tribunal of Western Cape Judge President John Hlophe are now heading to the High Court.

Judges Chris Jafta and Bess Nkabinde do not want to be part of the tribunal.

Last week the two said they would not lodge formal complaints against Hlophe, who allegedly spoke to them regarding corruption cases linked to President Jacob Zuma in 2008.

Last week the tribunal ruled that it would continue even though lawyers acting for Jafta and Nkabinde had fought for it to be scrapped.

They argued that there was no legitimate complaint against Hlophe and labelled the entire tribunal invalid.

But they lost that bid and are now taking the matter on review to the High Court.

Both Jafta and Nkabinde want to be excused from the proceedings until they have completed the court process.

But evidence leaders say the two judges are the only ones capable of giving the material evidence needed by the tribunal to do its job.

Jafta and Nkabinde have used technical legal arguments to avoid testifying in this tribunal and are now likely to say they refuse to accept its decision to continue.

But they have not explained why they first agreed a complaint should be laid by the entire Constitutional Court and then decided not to continue with it.

Hlophe's lawyers appear keen to get on with the tribunal and thus may insist that Deputy Chief Justice Dikgang Moseneke give his evidence to explain why the court decided to press ahead.

They may try to claim that Moseneke bullied the other judges into pressing ahead when they didn't want to.

DEPUTY CHIEF JUSTICE TO TESTIFY

Moseneke may finally get to testify under oath as to why he believes Hlophe tried to interfere with Constitutional Court cases.

If Nkabinde and Jafta say they still refuse to testify, Hlophe's lawyers may insist the tribunal bring in the witnesses who will testify.

This would mean his lead lawyer, Courtney Griffiths QC, would then get to question Moseneke.

But Griffiths may try to claim Moseneke actually pushed these judges into going ahead with the complaint and didn't deal with this issue properly.

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