Chief Justice Mogoeng files appeal against 'flawed' Israel comments ruling

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Chief Justice Mogoeng Mogoeng.
Chief Justice Mogoeng Mogoeng.
Jabu Kumalo
  • Mogoeng Mogoeng is appealing the ruling by the JCC that he retract comments he made about Israel.
  • The JCC found that Mogoeng's comments were in contravention of the Code of Judicial Conduct.
  • Mogoeng argued that his constitutional rights trump the code. 


Chief Justice Mogoeng Mogoeng has held firmly onto the constitutional rights of freedom of religion and freedom of expression in appealing the ruling of the Judicial Conduct Committee (JCC).

The JCC had ordered that he apologise for and retract comments he made about Israel during a webinar.

In June last year, Mogoeng participated in a webinar hosted by an Israeli newspaper, The Jerusalem Post, under the theme: Two Chiefs, One Mission: Confronting Apartheid of the Heart.

News24 previously reported that Mogoeng was asked about his previous utterances, with regard to his "love for the Jewish people, for Israel, for the state of Israel".

READ | Chief Justice Mogoeng ordered to retract Israel comments

Comments about Israel

"…So, whatever I have to say should not be misunderstood as an attempt to say the policy direction taken by my country in terms of their constitutional responsibilities is not binding on me. But, just as a citizen, any citizen is entitled to criticise the laws and the policies of South Africa or even suggest that changes are necessary, and that's where I come from," Mogoeng replied.

"The first base I give is in Psalm 122, verse 6, which says 'Pray for the peace of Jerusalem. They shall prosper that love thee'. And see also Genesis 12, verse 1 to 3, that says to me, as a Christian, if I curse Abraham and Israel, God, the Almighty God, will curse me too.

"So, I'm under an obligation, as a Christian, to love Israel, to pray for the peace of Jerusalem, which actually means the peace of Israel. And I cannot, as a Christian, do anything other than love and pray for Israel because I know hatred for Israel, by me and for my nation, can only attract unprecedented curses upon our nation.

"So, what do you think should happen? I think, as a citizen of this great country, that we are denying ourselves a wonderful opportunity of being a gamechanger in the Israeli-Palestinian situation."

JCC ruling

The JCC probed these comments, after a complaint was laid against Mogoeng.

The chief justice was accused of becoming involved in political controversy with regard to South Africa's policy towards Israel, criticising the state's official stance, and putting forward his own views.

READ | Chief Justice Mogoeng to appeal decision for him to apologise over Israel comments

Judge Phineas Mojapelo ordered Mogoeng to apologise and retract his comments after finding the chief justice had involved himself in political controversy, and that he had contravened the Judicial Code of Conduct.

Appeal

But, in his appeal papers, Mogoeng hit back at Mojapelo, calling his reasoning behind the ruling "flawed and disturbingly superficial".

"His Lordship Mr Justice Mojapelo misdirected himself in a material respect by finding that these complaints are not about, meaning they do not implicate, the constitutional rights to freedom of religion, belief, thought, opinion and freedom of expression," Mogoeng said.

"The learned Judge thus failed to deal with the constitutional right to freedom of expression and freedom of religion, belief, thought and opinion."

Mogoeng argued that Mojapelo had failed to interpret the Code of Judicial Conduct in a way that supports and promotes the right to freedom of expression and freedom of religion.

He added that the Constitution has supremacy over the code.

READ | Chief Justice Mogoeng refuses to apologise for Israel comments: 'There will be no retraction'

Mogoeng also criticised Mojapelo's finding that he was guilty of involvement in political controversy, on the basis that he criticised and proposed changes to the official policy of the South African government towards Israel.

"This constitutes a material misdirection because the South African government does not have an official policy towards Israel that is at variance with any of the statements I made on the Jerusalem Post webinar."

Mogoeng took a further swipe at Mojapelo, pointing out the hypocrisy in the ruling that his participation in the webinar amounted to involvement in an extra-judicial activity. He said Mojapelo had, himself, once written an article criticising the president's exercise of his constitutional powers to nominate and appoint a chief justice.

Mogoeng argued that, based on Mojapelo's reasoning, he should also be found guilty of the same charges as Mogoeng.

However, Mogoeng said this should not be the case, as Mojapelo was exercising his freedom of expression and added that justices should be allowed to air their views on policy.

Mogoeng appeared to be referring to a piece Mojapelo wrote in Advocate in 2013, titled "The doctrine of separation of powers".

In the conclusion, Mojapelo states: "The drawing of conclusions on the topic presented is a matter for discussion. This is no more than a perspective, a proposal or contribution to the search for conclusions".

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