The Constitutional Court is faced with a difficult decision of whether or not to hear an application by two of its own judges‚ Bess Nkabinde and Chris Jafta. This week‚ the two justices applied to the court for leave to appeal against the judgment of the Supreme Court of Appeal in the case in which they had sought to challenge the legality of a tribunal investigating Western Cape Judge President John Hlophe.Nkabinde and Jafta were among 11 Constitutional Court justices who in 2008 accused Hlophe of trying to influence the outcome of cases involving President Jacob Zuma.When the Judicial Conduct Tribunal was about to begin its work in 2013‚ Nkabinde and Jafta raised preliminary challenges against the tribunal’s constitutionality.Tribunal chairman retired Judge Joop Labuschagne dismissed their objection that there was no valid complaint which could be investigated. This prompted the justices to take his decision on review to the high court in Johannesburg.Nkabinde and Jafta sought an order declaring a section of the new Judicial Service Commission (JSC) Act to be inconsistent with the Constitution to the extent that it empowered the president of the Judicial Conduct Tribunal to appoint a member of the National Prosecuting Authority to collect evidence on behalf of the tribunal.The full bench of the high court dismissed their application in 2014.The SCA also dismissed their appeal‚ prompting Nkabinde and Jafta to apply for leave to the court they serve in on Monday.Constitutional law expert Prof Pierre de Vos said the question to be asked by the court would be whether a reasonable person‚ who was not overly suspicious‚ would believe that the judges of that court would not make an impartial decision.De Vos said the judges had two options."Either judges of the Constitutional Court would say: ‘A reasonable person would believe we would not be objective’ and recuse themselves. If they recuse themselves‚ there is no appeal."Another option was for the judges to hear the case but exclude Deputy Chief Justice Dikgang Moseneke‚ who was among the original complainants in 2008. The rest of the complainants‚ except for Nkabinde and Jafta‚ have already retired.A matter before the Constitutional Court must be heard by at least eight judges. There are 11 judges at the court.In their application to the Constitutional Court‚ Nkabinde and Jafta said they had been advised by their counsel that there had been difficulty in presenting their case before the SCA.Nkabinde said a state attorney who attended the proceedings in Bloemfontein told them that he believed they were not afforded a fair hearing.Nkabinde also took issue with suggestions made by Judge Mahomed Navsa in his judgment that the two suffered from the judge’s disease of pomposity and irritability.“Protecting and upholding the law ought not be viewed as a display of ‘vanity‚ irascibility‚ narrowness‚ arrogance‚ and other weaknesses’‚ and such view is an affront to our integrity‚” Nkabinde said.She said courts were expected to treat litigants‚ and those who appeared before it‚ with respect.“It is expected of the judiciary to preserve the dignity of the courts and litigants that come before them. There is no rationale for treating litigants who happen to be judges differently from ordinary litigants. When considering these issues cumulatively it is more compelling that the appeal should be upheld‚” Nkabinde said...