The Johannesburg High Court reserved judgment on Friday on applications to appeal its ruling on allegations made by Constitutional Court judges against Cape Judge President John Hlophe.

The Constitutional Court's judges are seeking leave to appeal against the court's finding that they were unfair in making public the allegations against Hlophe.

Hlophe is opposing the application, but has applied for leave to bring a cross appeal should the judges succeed in their action.

Reserving judgment, Justice Phineas Mojapelo, who heads a full bench of five judges hearing the matter, said the court had received fairly substantial heads of argument from both parties.

It had also heard their arguments in response to specific questions put to them by the court.

It needed to consider all the heads and "within a fairly short time" would notify the parties of the date on which judgment would be delivered.

The judges, represented by Gilbert Marcus SC, have brought their application on 14 grounds flowing from what they claim are flaws in the majority judgment, according to the heads of argument handed to the court.

They argued that, among other things, the majority judgment was internally contradictory and unsustainable, and that the conclusions reached were not justified in law or the established rules for the resolution of factual issues in motion proceedings.

They held that Hlophe's opposition of their application was "logically and legally unsustainable".

In accepting that the matter was an appropriate case for direct appeal to the Constitutional Court, it followed that he accepted that there were indeed reasonable prospects of success " as this is a pre-condition for leave to appeal" to the Constitutional Court, they submitted.

The judges further contended that Hlophe's application to bring a cross appeal to either the Constitutional Court or the Supreme Court of Appeal was "fatally defective".

The High Court had no jurisdiction to grant leave to the Constitutional Court, they held, adding that Hlophe had not identified what he sought to appeal or the grounds for such an appeal.

Arguing these issues in the Johannesburg High Court on Friday, Hlophe's counsel, Dumisa Ntsebeza SC, submitted that the case was unprecedented in South African law, and had triggered a constitutional crisis.

The Constitutional Court's judges had acted not only unlawfully, but unjustifiably, undermining judicial independence and integrity, he argued.

He rejected the suggestion that the important issues he spoke of were precisely the reasons why leave to appeal should be granted.

He also rejected the argument that the fact that the original majority decision was reached by only three of the five judges indicated there was indeed a prospect of another court reaching a different conclusion.

Ntsebeza further denied that in proposing that Hlophe be granted to leave to appeal to the Constitutional Court, he was conceding there were grounds for an appeal.

He pointed out that the application for cross appeal was subject to leave to appeal being granted.

He argued that it was in this event that he was submitting the case go to the Constitutional Court rather than the Supreme Court of Appeal.

Ntsebeza held that the case involved constitutional matters and the highest court on constitutional matters was not the Supreme Court of Appeal. In any event, which ever side won, the other was likely to then take the case to the Constitutional Court.

The Constitutional Court judges had claimed that Hlophe tried to influence Judge Bess Nkabinde and Acting Judge Chris Jafta while they prepared a judgment on whether ANC president Jacob Zuma should be entitled to challenge aspects of the corruption case he had faced up until last month.

Hlophe objected, claiming that the judges had violated his rights by making this allegation public.

The Johannesburg High Court found in September that the judges had indeed treated Hlophe unfairly, however that it was in the interests of public policy, justice, and the judiciary that the complaints be fully investigated by the Judicial Service Commission.

Sapa