Mogoeng now forced to decide on new apology

● Former chief justice Mogoeng Mogoeng has until February 3 to decide whether he will unconditionally apologise for becoming involved in political controversy or go to court to review the decision that he is guilty of misconduct.

He has no more avenues of appeal open to him under the Judicial Service Commission Act after an appellate panel of the Judicial Conduct Committee this week rejected his appeal. The finding is the first time a chief justice has been found guilty of misconduct.

The decision of the appeal panel relates to remarks Mogoeng made about SA’s relationship with Israel during a webinar hosted by The Jerusalem Post in June 2020. His remarks caused an outcry and led to three complaints of judicial misconduct.

During the webinar Mogoeng was asked about “some tense diplomatic relations” between the two countries and whether this was something that should be improved. Mogoeng answered in the affirmative, saying that though he was bound by SA’s policies he was, as a citizen, entitled to criticise.

After quoting the Bible he said SA could use its history of being “a nation at war with itself” to mediate peace around the world. He asked rhetorically whether the country had cut diplomatic ties with or embarked on a disinvestment campaign from its former colonisers, which took away people’s land and wealth. He said South Africans needed to “reflect on the objectivity involved in adopting a particular attitude towards a particular country that did not, that does not, seem to have taken as much and unjustly from South Africa as other nations”.

A majority of the appeal committee, Supreme Court of Appeal judges Dumisani Zondi and Nambitha Dambuza, confirmed that Mogoeng had breached the code of judicial conduct in two respects: first, by becoming involved in a political controversy; and second because his extrajudicial activities were incompatible with the confidence in, or the impartiality or independence of, a judge.

In his reasons, Zondi said prohibiting judges from getting involved in political controversy was necessary to secure their independence. Though it limited their rights to freedom of expression and religion, this was “reasonable and justifiable and serves a legitimate objective”. In any event, Mogoeng had not claimed that the judicial code was unconstitutional, he said.

Agreeing, Dambuza said that while judges enjoyed rights and freedoms like other citizens, they were “trustees of the rule of law” and their job was to protect and promote “all the freedoms of the citizens of this country equally”.

“When judges ascend to judicial office they are well aware of the intrusions that their calling entails on some of their freedoms. They accept that the judicial office comes with certain restrictions which would not be acceptable to ordinary citizens,” she said.

However, the appeal decision softened the apology that Mogoeng was originally ordered to make. The Judicial Conduct Committee’s earlier decision, by Gauteng deputy judge president Phineas Mojapelo, found that Mogoeng had aggravated his conduct when, after the outcry, he said that “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.”

Mogoeng had been particularly aggrieved by Mojapelo’s order, which dictated the apology he had to give, saying it was made to humiliate him and that Mojapelo had discounted that he had qualified what he said by saying “unless forced by the law”.

Zondi agreed that Mojapelo should have considered the entirety of the statement, “not only its portions”. As a result, there is a new apology that Mogoeng has been directed to give.

In a dissenting view, Johannesburg high court judge Margie Victor would have cleared Mogoeng entirely. She said if his statements were looked at in context they were “merely a lesson in peace for both Israel and Palestine as well as all nations”.

Victor said when the judicial code of conduct was properly interpreted, “involved” in political controversy meant active participation — “more active than just a call for peace at a webinar”.

Zondi said that in recent years, speeches and lectures by judges “in which they have been critical of certain public institutions have been tolerated … [but this] does not mean that they should be encouraged”. Where they crossed the line and breached the judicial code, “necessary corrective action should be taken”.

Victor said that when judges spoke extrajudicially, “our democracy should encourage this, not merely tolerate it, particularly from some judges while not from others”.

Mogoeng could not be reached for comment.