CONSTITUTIONAL Court Justices Bess Nkabinde and Chris Jafta have said in court papers that the Constitutional Court — their very own court — had breached their right to equal protection and benefit of the law.

In an unprecedented case, the two justices have applied for an order of the Constitutional Court to be reversed, saying it was made "in error".

The case has its roots on the ongoing "Hlophe saga". In 2008 a complaint of gross misconduct was made to the Judicial Service Commission (JSC) against Western Cape Judge President John 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, they challenged its lawfulness.

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

Then last month, the Constitutional Court refused them leave to appeal, saying since so many of its 11 members were conflicted, it did not have a quorum. The Constitution requires that cases before it must be heard by at least eight justices.

Last month’s order 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.

But the two judges then applied for the order to be rescinded — saying their colleagues on the highest court had not given them the opportunity to make submissions on the issue of recusal.

In a further affidavit — filed last week — Jafta said the order was open to rescission because the basis of the court’s decision to turn them away (the inability to get a quorum) was a factor that had been raised by the court itself; they had not been given an opportunity to argue on it.

"We were not heard in respect of a point that was not on the papers but was raised by the court mero motu in the absence of the parties," said Jafta.

Referring to the earlier case in the Hlophe dispute, Jafta said he and Nkabinde did not understand why they were being treated differently because in that case, the parties were asked to make oral arguments to the court.

"We respectfully submit that this constituted an unequal protection and benefit of the law which violates section 9(1) of the Constitution," he said.

He also repeated the accusation that the Supreme Court of Appeal had not given them a fair hearing. The Constitutional Court had perpetuated the "transgression".

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