Freedom Under Law (FUL) on Wednesday filed papers in the North Gauteng High Court in a bid to set aside a Judicial Service Commission (JSC) decision on a complaint against Cape Judge President John Hlophe.

"The affidavit, signed by Dr. Mamphela Ramphele as formal deponent, seeks to set aside the decision by the JSC not to hold a formal investigation into the complaints levied against Justice Hlophe and his counter complaint against the Justices of the Constitutional Court," the nongovernment body said in a statement.

The aim of the legal challenge, announced by FUL chairperson Judge Johann Kriegler last month, was to compel the JSC through the courts to conduct a proper enquiry into the Hlophe matter, with witnesses testifying under oath and cross-examination on the matter.

FUL's legal challenge is centred on two decisions taken by the JSC - the first is its about-turn this year on a July 2008 decision to conduct a formal enquiry.

"Instead they decided to have a three-man subcommittee conduct a preliminary enquiry... notwithstanding that they had already passed that phase and had entered a full-scale hearing with oral evidence.

"This we say is irrational, unconstitutional and legally unsound."

The second decision FUL is challenging was the one in which the JSC opted to "shut down" the investigation of the original complaint against Hlophe and his counter complaint against the
Constitutional Court judges.

"The affidavit identifies a sequence of erroneous steps by the JSC majority including that they misunderstood the nature of their powers when conducting the enquiry...

"... they misunderstood what would constitute improper influence; they ignored cogent evidence; left crucial issues of fact undecided; failed to give the justices a proper opportunity to be heard and made no attempt to analyse the probabilities regarding the complaints."

Hlophe was accused of trying to interfere in a pending judgment by the Constitutional Court in a case related to Jacob Zuma before he became President.

FUL's decision to take legal action on the Hlophe matter unleashed a litany of criticism of Kriegler, a former Constitutional Court judge, with some branding him a racist.

Three members of FUL's board - businessperson Cyril Ramaphosa, Johannesburg High Court Acting Judge Kgomotso Moroka and advocate Dumisa Ntsebeza - resigned as a result of the decision.