A law body headed by former judge Johann Kriegler intends challenging the Judicial Service Commission's (JSC's) decision not to probe Western Cape Judge President John Hlophe.

"Proceedings will be launched in the immediate future to set aside as irrational and unreasonable the decision of the JSC not to pursue the complaint of the judges of the Constitutional Court against Judge Hlophe, and not to pursue his complaint against the judges in turn," Kriegler, a former Constitutional Court judge, told a media briefing in Johannesburg on Thursday.

The pending legal challenge by Freedom Under Law has the support of two of its panel members, archbishop Desmond Tutu and Dr Mamphela Ramphele.

"...The two did not only empower me, but asked me to express in public the grave seriousness of what is happening and, as the archbishop put it, 'you are working for the safety of our country'. It is indeed that serious.

"The rule of the law cannot survive if the legitimacy of the judiciary is not protected, and the legitimacy of the judiciary cannot survive unless the JSC does its duty," he said.

The JSC's decision not to probe allegations that Hlophe tried to influence two Constitutional Court judges in a ruling involving President Jacob Zuma's former corruption case was "gravely harmful to the rule of law".

"...The decision by the JSC is the biggest threat to rule of law the country has experienced since is emerged from darkness,'' Kriegler said at the women's jail at Constitution Hill.

"The JSC was a magnificent instrument designed by the drafters of our Constitution to ensure that the judiciary was protected in its integrity and in its manifest independence. It has failed us in producing a decision that is legally indefensible and factually insupportable."

He said "unequivocally" that the purpose of the legal challenge was not to have Hlophe impeached, but to compel the JSC to do its duty.

"I owe nothing, I bear him no grudge, I owe a duty to the judiciary of this country which I have served for decades to the best of my ability."

The JSC had recognised there was a conflict of fact between the Constitutional Court judges' version of events on the one hand and Judge Hlophe's on the other, but said it would be pointless to cross-examine the parties because they would stick to their stories.

"For thousands of years, lawyers have recognised that when there are conflicts of fact, the recognised way of resolving them is to submit the conflicting versions to cross-examination. We find it astounding the JSC can decide that its pointless to have cross-examination because they'll stick to their guns in any event," Kriegler said, explaining one of the grounds for the legal challenge.

The JSC's decision had already impaired the nomination process for new Constitutional Court judges, with one judge having already withdrawn his application.

"I was approached by five of the candidate judges, four of whom I could persuade to continue their applications. The fifth, Judge Bob Newton of the Supreme Court of Appeal has withdrawn his application... and he has asked me to convey to his fellow countrymen that he has done so because he cannot submit his candidacy to the deliberation of people he does not trust,"
Kriegler said.

The Justice Department on Wednesday said Hlophe would return to work on Monday after being placed on special leave in May 2008.

JSC spokesperson Marumo Moerane said Kriegler had not yet communicated with the body.

"When they file papers and serve them, and we look at them, we will be in the position to respond," he said.

Hlophe's lawyer Barnabas Xulu could not immediately be reached for comment.

Launched in January, Freedom Under Law (FUL), registered in South Africa and Switzerland, aimed to promote democracy under the law "and to advance the understanding and respect of the rule of law and the principle of legality".

The FUL board of directors include Elize Angula, a director of LorentzAngula Incorporated, practising in commercial litigation, human rights law and family law; former dean of law at the
University of Cape Town Professor Hugh Corder; Ezra Davids, a partner in and head of Bowman Gilfillan's corporate department and Jeremy Gauntlett SC, co-chair of the IBA's Forum for Barristers and Advocates. Kriegler is its chairperson.

Its international advisory board includes Sir Sydney Kentridge, a member of Nelson Mandela's defence team in 1961; businessperson Cyril Ramaphosa, Dr Mamphela Ramphele, former attorney general to India Soli Sorabjee SC and Archbishop Desmond Tutu.