Mogoeng hits back at ‘flawed’ censure by JCC
The reasons given for why Mogoeng Mogoeng should apologise for his public comments on SA’s foreign policy on Israel are “exceedingly flawed, poor and shallow”, the chief justice said in his appeal to the Judicial Conduct Committee (JCC) yesterday.
The JCC ruling, by retired Gauteng deputy judge president Phineas Mojapelo, marked the first time in SA’s democratic history that a chief justice has been found to have committed misconduct.
In a stern rebuke, Mojapelo found that Mogoeng had breached the code of judicial conduct in a number of ways, including by becoming involved in political controversy or activity.
Mogoeng was directed to apologise within 10 days, with a scripted apology set out in the decision. He was directed to “unreservedly retract” a subsequent statement in which he said: “Even 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.”
In his appeal, Mogoeng took particular umbrage at the scripted apology. “It bears the hallmarks of something intended to bring one down to his knees — to crush, to humiliate, written for a pupil who cannot yet ‘read for comprehension’,” he said.
The comments that gave rise to the misconduct complaint were made during a webinar hosted by The Jerusalem Post. Asked about the sometimes “tense relations” between SA and Israel, Mogoeng said he considered himself bound by SA’s policy positions, but as a citizen he was entitled to his views.
After quoting the Bible, he said “as a Christian” he had to “love and pray for Israel because I know hatred for Israel … can only attract unprecedented curses upon our nation”.
He said that despite neocolonialism, which was still causing suffering to Africans, SA had not cut ties with or disinvested from its former colonisers, and its position needed reflection.
Mogoeng’s remarks led to three separate complaints to the JCC. In his ruling, Mojapelo said: “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 [they may be] to those notions.”
In his appeal, Mogoeng maintained that nothing he had said contradicted any South African policy on Israel.
“There is nothing anti-Palestine or antianybody in any of my statements. Mine is a positive message that is about loving Israel, loving Palestine and loving all.”
Mogoeng said national policy was made in terms of section 85(2)(b) of the constitution and must be contained in a document signed by the president and countersigned by the minister responsible for the relevant portfolio.
“After a diligent and thorough search, I vouch for the fact that there is no official policy … toward Israel that contradicts any part of what I actually said, as opposed to what has been … put in my mouth.”
The chief justice also said Mojapelo was wrong when he said freedom of expression and religion was not at issue. He said that in interpreting the judicial code of conduct, Mojapelo had adopted too narrow a view.
“It has always been open to South African judges to exercise their constitutional right to freedom of expression ... to criticise laws including policy. Policy is not sacred.”
Mogoeng gave examples that he said were similar, where judges had written in newspapers or spoken publicly — including a May 2011 article by Mojapelo in the Sunday Times in which he was critical of the process for the nomination of the chief justice.