Cape Judge President John Hlophe and the Judicial Service Commission were urged by the High Court in Johannesburg to forge a settlement before judgment on their dispute is handed down.

Presiding judge Nigel Willis said during Monday's hearing: "We don't want to get our hands dirty". He was questioning counsel for the JSC and Hlophe on whether the court should get involved in the complaint proceedings against the judge before they had been concluded.

Hlophe was accused last year by the judges of the Constitutional Court of trying to interfere in a judgment relating to President Jacob Zuma. They complained to the JSC, but Hlophe has in turn complained about the way they handled the matter.

He believes they infringed his dignity when they made the matter public almost immediately after informing him of their complaint.

At the start of proceedings, Vuyani Ngalwana, counsel for Hlophe, told the court that Hlophe wanted the JSC proceedings against him stopped.

He alleged that the some members of the JSC were biased against him and that the JSC committee handling the matter was not properly constituted.

This was because former justice minister Enver Surty had recused himself on the grounds of having tried to broker a resolution.

Ngalwana said that from 5 July 2008, when the JSC began its complaints investigation, until after the hearings began this year in April, the process had been tainted.

He also accused veteran lawyer George Bizos of being biased when he asked that the April hearing be postponed.

The question of bias

Ngalwana said Bizos was recorded in a transcript of Hlophe's April hearing into alleged misconduct as saying the JSC had spent too much money on the hearing to postpone it.

"Now, if that doesn't show unqualified bias then I suppose the applicant has to swallow his constitutional rights and present himself before the JSC."

Hlophe had at first submitted a sick note saying he was too ill to attend, and then later asked for a postponement so that his lawyers could do more preparation. He complained at that stage of bias, but the JSC rejected his allegations.

Discussing the bias allegation, Surty's counsel Vas Soni said the JSC was not a decision making body, but a recommending body.

"That's a brilliant point, the JSC doesn't impeach," said Judge Willis.

"At the end of the day Parliament decides."

Lawyers for the both the JSC and the Constitutional Court judges argued that Monday's application was premature and that Hlophe should wait for the JSC's proceedings to be concluded, and then raise objections.

The Constitutional Court judges in particular wanted the matter concluded as it had been dragging on for almost a year.

But Ngalwana said he wanted either a reconstituted JSC, or a panel of retired judges to form an arbitration forum.

He would not accept a hearing at the JSC as it was presently constituted.

He said Hlophe was not trying to avoid being judged, but was merely exercising his rights.

The court reserved judgment but invited further submissions to be e-mailed by Friday.

Sapa

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