Lawyers for Cape Judge President John Hlophe filed papers on Thursday in another court challenge to the Judicial Service Commission (JSC) hearing that went ahead without him last month.

"Our view is that our client is not going to participate in unlawful proceedings. The JSC is not properly constituted," said Hlophe's attorney Barnabas Xulu.

He said papers were filed in the South Gauteng court for an urgent interdict to declare the JSC hearing as not properly constituted because Justice Minister Enver Surty had recused himself.

Hlophe also wanted to explore a view that emanated from a commissioner that the hearings were politically motivated, and believed his rights were infringed when the hearing went ahead without him.

"The fact of that is that our client is being denied the right to be present when this matter is heard," said Xulu, alleging that the JSC had violated its own rules.

Hlophe is on special leave after he was accused by the judges of the Constitutional Court of making an approach they considered inappropriate relating to a pending judgment on president-elect Jacob Zuma.

The judges lodged a complaint with the JSC and hearings on this went ahead without him last month after he submitted a sick note for flu.

The JSC was also to have heard a counter-complaint from Hlophe who felt the Constitutional Court judges had been unfair in making their complaint public shortly after informing him of their intentions.

Excuses by Hlophe?

The commission tried unsuccessfully to negotiate that Hlophe participate in the hearings via a video link so that he could follow proceedings and instruct his lawyers. But his lawyers felt it was wrong to go ahead while he was sick so they withdrew from the proceedings.

Xulu said that JSC commissioner Mvuseni Ngubane had claimed when deciding whether to postpone that there was a view that the matter should be dealt with before the change in administration, which was currently underway, or at least be partly heard.

This according to Ngubane, was because the commissioners feared "shenanigans" by the new administration.

The Weekender reported that Ngubane said some commissioners were worried that the commissioners could be replaced.

"If that's the case, the decision to refuse the postponement was wrong," said Xulu.

He said the matter had been set down for eight days, but it was "bulldozed" through in two-and-a-half days.

Hlophe had already tried to postpone the hearings on an allegation of bias by the JSC.

Hlophe had until Friday to make submissions on the matter to the JSC, so Xulu would attempt to secure an urgent court date.