Justice Mogoeng apologises
THE former Chief Justice of South Africa, Mogoeng Mogoeng, has apologised for his alleged pro-Israel comments.
In June 2020, Justice Mogoeng was featured on a webinar hosted by the Jerusalem Post alongside Chief Rabbi Warren Goldstein. In the online programme, Justice Mogoeng expressed what some interpreted as his love for Israel. He also criticised the ANC for its approach to the Israel-Palestine conflict.
#Africa4Palestine, a human rights and Palestine solidarity organisation, previously known as Boycott, Divestment and Sanctions (BDS), reported Justice Mogoeng to the Judicial Services Commission (JSC).
The report was on the basis that a judge should not become involved in political controversy or activity. In the complaint, the group said his conduct was improper for a judge.
In March last year, the JSC’s Judicial Conduct Committee ruled that Justice Mogoeng had contravened Article 12 (1) (b) of the Judicial Code of Conduct.
The article states that a judge must not - unless it is necessary for the discharge of judicial office - become involved in any political controversy. It also found that he criticised the government’s stance on the matter, which was against the Judicial Code of Conduct. The committee then ruled that he had 10 days to apologise and retract the statements.
Justice Mogoeng did not apologise. Instead, he released a statement that he intended appealing the decision. In his appeal, Justice Mogoeng said the committee had failed to interpret the Judicial Code of Conduct in a way that supported and promoted the right to freedom of religion and freedom of expression.
In a bid to resolve the matter, #Africa4Palestine wrote to Justice Mogoeng requesting a meeting but he declined the invitation.
His appeal and the organisation's opposing submissions to the appeal were heard by the conduct committee at the Constitutional Court in June last year. In January, the conduct committee dismissed his appeal and ordered Justice Mogoeng to apologise within 10 days - that was by February 3.
The conduct committee dismissed his appeal on the following grounds:
◆ His involvement in political controversy by commenting on, criticising and proposing changes to the official policy of the South African government towards Israel.
◆ Participating in an extra-judicial activity that is incompatible with confidence in or the impartiality or independence of judges, by expressing a view on the diplomatic relations between South Africa and Israel.
◆ Accepting an appointment that is inconsistent with an independent judiciary by agreeing to participate in the Jerusalem Post webinar.
◆ Lending the prestige of judicial office to advance his interests and those of the Jerusalem Post; and failure to give precedence to his judicial duties over all other duties and activities.
Justice Mogoeng apologised in a statement, saying: “I, Mogoeng Mogoeng, the former Chief Justice of the Republic of South Africa, hereby apologise unconditionally for becoming involved in political controversy through my utterances at the online seminar (webinar) hosted by the Jerusalem Post on June 23, 2020, in which I participated.“
Muhammed Desai, the director of #Africa4Palestine, said: “The human rights organisation Africa4Palestine accepts the forced-by-the-law apology made earlier today by South Africa’s top judge for his pro-Israel remarks and violating the Judicial Services Commission's (JSC) Code of Judicial Conduct.”
He said the apology was more significant given that Justice Mogoeng was compelled.
“He was forced, kicking and screaming, to the apology table. We see this as a victory over fanaticism and ego. We see this as a victory for the rule of law and an indication of the strength of our judiciary. It is a landmark apology that shows that even the chief justice is not above the law. It is a good day for the South African judiciary."
Desai said this was a victory for Palestinian activists.
“The message is clear, South Africa and South Africans are in support of international law and human rights, and to suggest otherwise is incorrect.”
Rolene Marks, the spokesperson for the South African Zionist Federation (SAZF), said: “The SAZF finds this ruling disappointing and misguided. It is neither tendentious nor controversial to call for peace in the Middle East or any part of the world.
“It is common decency to make such remarks, unlike the complainants in this case, who actively and regularly call for the destruction of the world’s only Jewish State. Had he (Mogoeng) made remarks about peace between Ukraine and Russia, or China and Taiwan, would there have been a similar furore and outcome? Of course not.”
She said Justice Mogoeng should never have been censured for his comments on the Jerusalem Post panel discussion which were seized on and politicised by anti-semitic factions.
“The SAZF condemns the co-ordinated and sustained attack by the BDS movement on the former chief justice. BDS will stop at nothing to work against Israel and Jews around the world.
“We are concerned this will have a chilling effect on the discourse surrounding Israel and further bolster the extremist voices intent on derailing the cause of peace in the Israeli-Palestinian conflict.”
Marks said while Justice Mogoeng’s now censured remarks related to peaceful engagement with the Middle East, they awaited the conduct committee’s decision on Judge Siraj Desai.
This, said Marks, was in response to his public support for the organisation of Hamas, which had called for the killing of all Jews.
“We look forward to an appropriate and speedy resolution of this complaint. If the JCC does not find Judge Desai in contravention, it will expose a serious double standard in the judiciary.”