THE Judicial Service Commission (JSC) on Monday responded to the unprecedented application to the Constitutional Court — by two of its justices — to reverse its own order, saying the court had no duty to hear argument on whether to grant leave to appeal.

The court’s order in May — which judges Bess Nkabinde and Chris Jafta called "erroneous" and "unfair" — was expected to put an end to a case the two had steadfastly pursued since 2013, in which they challenged the lawfulness of a judicial tribunal set up to investigate gross misconduct claims against Western Cape Judge President John Hlophe.

But Jafta and Nkabinde asked for the earlier order to be rescinded. The recision application has resulted in all disciplinary tribunals investigating potentially impeachable conduct by judges being delayed.

The case has its roots in a 2008 complaint of gross misconduct against Hlophe by all the then justices of the Constitutional Court including Jafta and Nkabinde.

They alleged that Hlophe had improperly tried to influence the outcome of judgments connected to corruption charges against President Jacob Zuma.

After several stops and starts and intervening litigation, Jafta and Nkabinde were supposed to be the key witnesses against Hlophe at a tribunal. Instead, the two challenged its lawfulness.

Their arguments that the tribunal was unconstitutional were rejected by the high court and the Supreme Court of Appeal.

In May, the Constitutional Court refused them leave to appeal, saying since many of its 11 members were conflicted, they did not have a quorum. Cases before the court must be heard by at least eight justices.

Nkabinde and Jafta then confounded the legal community when they applied for the court’s order to be rescinded, saying their right of access to courts had been breached.

But in court papers filed on Monday, the judicial commission’s Ishmael Semenya said the Constitutional Court’s rules specifically allowed it to deal with a leave application "summarily, without receiving oral or written argument or convening a public hearing".

Quoting from earlier Constitutional Court judgments, Mr Semenya said this procedure was “long observed” and did not breach any constitutional provision.

He said Jafta and Nkabinde had enjoyed fair public hearings already — by a full bench of the High Court, by the Supreme Court of Appeal and by the Hlophe tribunal.

“The facts clearly show that the applicants’ right (of access to court) has in no way been undermined,” said Semenya.

The Constitutional Court’s order refusing leave to appeal was based on an earlier case — that also arose out of the Hlophe dispute — in which the Constitutional Court established the principle that leave to appeal would be refused if a quorate court could not be formed.

Semenya said just because argument was called for in that case did not entitle a litigant or obligate the court to call for such argument in every case.

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