Johannesburg — The Judicial Service Commission (JSC) tribunal hearing into a complaint of misconduct against Cape Judge President John Hlophe was postponed on Tuesday.
"Older age has taught me not to make a decision too quickly. We [the tribunal] are going to need some time," tribunal president, retired judge Joop Labuschagne said.
"We will get together this afternoon and during the course of tomorrow [Wednesday] and we will do our best to make a decision on Thursday morning at 10 o' clock."
The tribunal heard earlier on Tuesday that it was an invalid proceeding.
Selby Mbenenge, SC, for Constitutional Court judges Chris Jafta and Bess Nkabinde, said the tribunal's legitimacy was at stake because the rules governing it were invalid.
"This tribunal is not a properly appointed structure as the rules applicable to this proceedings make no provision for its creation," he said.
He said the rules of the tribunal were also invalid since they were not published in the government gazette by the minister of justice, in terms of the unamended JSC Act.
"In our view the failure to publish the rules in question is fatal and the rules cannot be relied on," Mbenenge said.
"The entire proceedings become a nullity. There was in the first instance no complaint to investigate -- there was no inquiry to conduct."
Mbenenge said Jafta and Nkabinde were entitled to raise the defence that they were not obliged to subject themselves to the proceedings.
He said that "strictly speaking" the two were not party to the proceedings. However they had made submissions in the anticipation that they be called to testify.
"They have a right not to testify before an illegitimate structure," Mbenenge said.
"Our submission is, crudely speaking, that we must pack and go, all of us. There is nothing to postpone."
Labuschagne joked: "That will possibly please my wife."
In 2008, Jafta and 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 ultimately heard in the Supreme Court of Appeal with rulings in favour of Western Cape premier Helen Zille and lobby group Freedom Under Law.
Hlophe faces impeachment if found guilty.
Evidence leader Xoliswa Khanyile said on Tuesday the issue surrounding the legality of the proceedings was beyond her.
"All I can say is the issues that are raised here are issues that really should be decided by the court. I don't think this tribunal can really invalidate itself and say 'we are part of an illegal structure'."
Gilbert Marcus, SC, for the Constitutional Court judges excluding Jafta and Nkabinde, said on Tuesday that "everybody" had accepted since July 2008 that these proceedings were conducted in accordance with a set of rules that were made in terms of relevant legislation.
"We submit that on the acceptance that there has not been publication of those rules, it really cannot have the effect of invalidating everything that follows," he said.
"What we are concerned about is whether or not the initiating complaint in May and June 2008 is valid or not. We submit... that there is no basis upon which section 14 of the act, which only came into force on the first of June 2010, can be held to apply retrospectively to completed transactions."
Courtenay Griffiths, QC, for Hlophe, questioned on Monday why, if the decision to lodge a complaint against Hlophe was a collective one between all the Constitutional Court judges, Jafta and Nkabinde were being represented separately from the other judges at the tribunal.
"[The tribunal] is dependent on the initial two and yet those two appear to stand in a different position to the rest."
According to a 2009 joint statement by Jafta and Nkabinde, the two said they had not lodged a complaint against Hlophe and did not intend doing so, said Griffiths.