Mogoeng chided for willful misconduct

In an unprecedented move, chief justice Mogoeng Mogoeng has been raked over the coals by the judiciary’s conduct body for getting involved in a political controversy and he has been ordered to apologise.

In what is a first for a chief justice, he has now been rebuked not only for getting involved in a controversy over comments he made on the Israeli-Palestinian conflict — in which he criticised SA’s foreign policy — but also for his continued defiance after the comments drew a major response.

Mogoeng had sought to defend himself by saying his comments were made as a Christian, but judge Phineas Mojapelo, a member of the judicial conduct committee tasked with probing three complaints laid against Mogoeng over the matter, emphasised that the complaint was not about freedom of religion or freedom of expression but merely about whether the code of conduct for judges was breached.

Mojapelo found that comments about the IsraeliPalestinian conflict made by Mogoeng in a webinar hosted by the Jerusalem Post amounted to a breach of the code of conduct for judges and that Mogoeng had got himself involved in a political controversy.

“Judges are to stay out of politics and are only permitted to pronounce on the legal and constitutional boundaries that may apply to those politics.

“When called upon to pronounce, they do so on the basis of the constitution and the law and not on the basis of any preconceived notions — not even religion — however committed to those notions.

“That is what the constitution and their oaths or affirmation bind them to,” Mojapelo wrote.

The conduct committee also found that Mogoeng breached a number of other articles in the code, including one that precludes judges from using the prestige of their judicial office to advance their private interests, and that judicial duties take precedent over other duties.

It found he involved himself in extrajudicial activities incompatible with the confidence in and the impartiality of judges and he failed to respect the separation of powers. Foreign policy is determined by the executive and not the bench.

In the 67-page decision Mojapelo takes a dim view of the fact that Mogoeng in the wake of the webinar said “[e]ven if 50-million people were to march every day for 10 years for me to do so, I would not apologise. If I perish, I perish.”

Mojapelo said by the time Mogoeng made the aggravating comments it was already known that the judicial conduct committee was dealing with a complaint on the matter.

“They [his comments after the webinar] are brazenly defiant. 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,” Mojapelo wrote in the decision.

This defiance contributed to the misconduct being seen as willful and Mogoeng has been ordered to retract his comments on refusing to apologise unreservedly.

Also as part of the apology, Mogoeng has been ordered to affirm the statutory authority of the judicial conduct committee of the Judicial Service Commission, which is tasked with dealing with the conduct of judges.

He must, within 10 days of the decision, read the apology and retraction determined by the conduct committee at a meeting of the serving justices of the Constitutional Court and release a copy of it under his signature to the office of the chief justice and to the media.

The complaints were lodged by Africa 4 Palestine, SABDS Coalition and the Women’s Cultural Group.