The Supreme Court of Appeal (SCA) on Monday reserved judgment in an attempt by the Constitutional Court to appeal a High Court ruling in favour of Cape Judge President John Hlophe.

In September last year, the High Court in Johannesburg ruled that the release of a media statement by the Constitutional Court judges detailing "untested allegations of gross misconduct" against Hlophe was unlawful.

The Constitutional Court had complained in June last year that Hlophe tried to influence Justice Bess Nkabinde and Acting Justice Chris Jafta who were weighing up a ruling on the validity of search warrants against ANC president Jacob Zuma.

The High Court also found the publication of allegations in the media was unreasonable and unjustifiably violated Hlophe's constitutional right to dignity and his right to comment prior to, and in relation to, such publication.

Junior legal counsel for Hlophe, Thabani Masuku, told the SCA that the release of the media statement was a "highly irregular act" for members of the judiciary.

"It's our submission that when judges speak to the public they must have a regard for the impact of what they are about to say."

Masuku, who took over from senior counsel Dumisa Ntsebeza shortly before lunch, submitted that they were of the opinion that the judges were making the statement in their official capacity and not as ordinary citizens.

"They did not just report the complaint, they went further in a judgmental way," he said.

Masuku submitted that allegations against any judge could never be of public interest if they had not been tested first.

Judges, even when not sitting in court, were not "stripped" of their function and obligation to act impartially.

"I would submit that precisely because of the office they hold, they should not have published the complaint."

Advocate Gilbert Marcus, defending the Constitutional Court's judges, said there was neither a factual nor legal basis for the High Court's finding that Hlophe's rights to dignity, equality and fairness had been violated.

Marcus said the effect of the High Court's majority decision was that it had taken over the work of the Judicial Service Commission (JSC).

"The JSC is the constitutionally mandated body to deal with investigations into misconduct by judges," he said.

Marcus submitted that the findings of the High Court and the conclusions reached were now binding on the JSC.

He said the High Court's judgment had now "improperly impeded" the JSC from performing its functions.

It had also "improperly hindered" the Constitutional Court judges from presenting their case to the Commission.

Marcus also submitted that Hlophe's contention that the judges acted "as a court" was factually misconceived.

The panel of nine SCA judges, instead of the normal full bench of five, sat on the appeal, chaired by SCA deputy president Louis Harms.

Harms said the nine judges were only necessary because the High Court in Johannesburg took the unprecedented step of appointing five judges to hear the earlier matter.

The SCA judges hearing the appeal were Harms, Piet Streicher, Kenneth Mthinyane, Thomas Cloete, Visvanathan Ponnan, Dunston Mlambo, Robert Nugent, Suretta Snyders and Nonkosi Mhlantla.