The Judicial Conduct Committee has given Chief Justice Mogoeng Mogoeng 10 days to apologise for comments he made about the Israeli-Palestinian conflict during a webinar last year.
The committee said: “It is important that those utterances must be unreservedly retracted and withdrawn to return and maintain the public image of the judiciary to its rightful place.”
Complaints were laid against Mogoeng by Africa4Palestine, the SA Boycott Disinvestments and Sanctions Coalition, and the Durban-based Women’s Cultural Group shortly after the incident. Part of the complaints was that Mogoeng failed to recuse himself from the case of Jewish Board of Deputies vs Cosatu and Bongani Masuku, where there had arisen a reasonable suspicion of bias against one of the parties. The case was heard in the Constitutional Court in August 2019 before a bench that included Mogoeng. It concerns a complaint of hate speech against Masuku, a senior official of Cosatu, in respect of the Israeli-Palestinian conflict, specifically his call for action against “Zionists”.
The matter was still pending at the time of the webinar and at the time when the complaints were lodged. However, Mogoeng did not recuse himself even after the complaints were laid.
Mogoeng was in a web conference hosted by the Jerusalem Post alongside Union of Orthodox Synagogues of SA Chief Rabbi Warren Goldstein when he said South Africans and Africans at large had not cut diplomatic ties with colonisers yet they criticised Israel.
“Did Israel take away our land or the land of Africa? Did Israel take our mineral wealth? We’ve got to move from a position of principle here.”
“As a citizen of our great country, we are denying ourselves a wonderful opportunity of being a game-changer in the Israeli-Palestinian situation. We know what it means to be at loggerheads, a nation at war with itself,” Mogoeng was quoted as saying by the publication.
“The forgiveness that was demonstrated, the understanding and big heart displayed by [former] president Nelson Mandela and we the people of South Africa is an asset we must use around the world to bring peace when there is no peace and to mediate effectively based on rich experience,” he added.
While the committee was not in favour of Mogoeng recusing himself, it did mention that his offending utterances at the virtual prayer meeting were “aggravating” and “brazenly defiant”.
It was established that his utterance started political controversy and that he used his prestige in the judicial office to advance his own private interest or the interests of other parties.
The report by the committee said that Mogoeng had failed to minimise the risk of conflict with his judicial obligations and involved himself in extrajudicial activities that impinge on a judge’s availability to perform judicial obligations.
His views have been deemed incompatible with the confidence in and impartiality of judges, and it was found that he failed to respect the separation of powers.
Mogoeng’s response was that his Biblical obligation to love and pray for the peace of Jerusalem and Israel was not an expression of a view on Zionism, which was an issue in the Masuku case.
The chief justice argued that in the same webinar he also declared his love for Palestine and Palestinians, and asserted that the complaints had deliberately left that portion of his statement out.
However, the committee found that a chief justice is not like any other citizen because he/she is the head of the judiciary and is subject to the restraints of that office, including the ethical rules which govern the conduct of each and every judge.
“He is the first among the judiciary and thus represents the entire South African judiciary in several instances, nationally and internationally. He is subject to those restraints of office in his official and private capacity. In his judicial and extrajudicial activities in terms of the code that he himself signed into effect. He cannot cease to be chief justice and be like any other citizen for as long as he is in office. That is a comfort he left behind when he accepted the office which he now holds. He may wish to criticise the policies of the executive and legislative arms of the state, but he cannot do so publicly without raising controversy, that is involving himself and his office in political controversy.”
The committee found in that in his answer to the question on South African policy towards Israel and to advance his personal view, Mogoeng entered into the area of the executive authority of the state on international relations to criticise its foreign policy towards Israel publicly on an international platform. This was done on the eve of the appropriate South African executive authority making a statement on the same issue at the UN Security Council.
“He therefore undermined and failed to show respect for the constitutionally ordained separation of powers. There was no duty of judicial office compelling him to do so. He elected to criticise the official position of the state and put forward his own views.”
The committee also found that Mogoeng’s comment that “even if 50 million people can march every day for the next 10 years for me to retract or apologise for what I said, I will not do it” could be regarded as aggravation of his earlier utterances at the webinar.