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Fight over chief justice’s Israel comments grows

Chief Justice Mogoeng Mogoeng’s responses to a complaint, laid against him by Africa For Palestine for alleged pro-Zionist remarks during a webinar, has been described by the organisation as “unbecoming of someone occupying the office of the chief justice”.

In his complainant’s reply to Mogoeng’s submissions to the Judicial Service Commission’s (JSC’s) conduct committee, the director of Africa For Palestine, Muhammad Desai, this week submitted that he was “seriously shocked by the acidity and sheer volume of [Mogoeng’s] attacks on us, our motives, and our commitments to human rights”. 

Desai said he found it “insulting” and “high-handed” for Mogoeng “to decree that it is unChristian — indeed anti-Christian — to dare to challenge the judicial propriety of his remarks on [South Africa’s] diplomacy” in relation to Israel.

Maintaining that the complaint was about Mogoeng expressing a “political view” on the Palestine-Israel conflict, Desai said the chief justice was “wholly misplaced” in using the “vast majority” of his response to defend his religious freedom by characterising the complaint as “anti-Christian” while unleashing a “torrent of ad hominem attacks” on Africa For Palestine (formerly called BDS South Africa). 

Mogoeng’s accusations against the organisation included a “lamentable ignorance about true judgeship”, “acute anger-management incapacity”, “unrestrained irrationality and vitriol” and “singling him out as ‘their target … because I quoted parts of the Bible that [Africa For Palestine] don’t like’ ”.

Africa For Palestine’s complaint related to remarks Mogoeng made during a webinar also involving South Africa’s chief rabbi, Warren Goldstein, and hosted by the Jerusalem Post on June 23 this year. 

Last year South Africa closed its embassy in Jerusalem and Africa For Palestine alleged in its complaint that Mogoeng “expressed, or at least unambiguously implied” that this “political posture” was not right and likely to “only attract unprecedented curses upon our nation”. 

The organisation also alleged that Mogoeng “further expressed [the opinion] that a ‘disinvestment campaign’ against the State of Israel is not right”.

Among his choice utterances during the webinar Mogoeng, an evangelical Christian, said: “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 will, can, only attract unprecedented curses upon our nation”.

In making these statements Mogoeng, according to Africa For Palestine, breached the Code of Judicial Conduct by involving himself in a political controversy and “potentially even political activity” and had committed this breach in a “wilful or at least grossly negligent” manner.

The organisation further alleged that Mogoeng had also breached the code by not recusing himself from a matter the Constitutional Court heard in August last year, SA Human Rights Commission and Another v Bongani Masuku.

Mogoeng led proceedings in that hearing, which the court has yet to deliver judgment on. The matter relates to comments made by Masuku, a leader of trade union federation Cosatu, who called for action, including a programme of boycotting, divestment and sanctions, against the “Zionist” state during an address at the University of the Witwatersrand. The Human Rights Commission and the Jewish Board of Deputies had laid charges of hate-speech against Masuku.

On July 9, Deputy Chief Justice Zondo, in his capacity as acting chairperson of the Judicial Conduct Committee, designated Phineas Mojapelo, the deputy judge president of the South Gauteng division of the high court, to determine the merits of the complaint.

Mogoeng, in his responses to the complaint, which he filed with the Judicial Conduct Committee in late July, claimed that his freedoms of religion and expression had been “weaponised against me in the name of human rights” and to “make an example of me”.

While appearing to suggest that he was the victim of a smear campaign Mogoeng further alleged that the complaint “smacks of deep intolerance of genuine Word-based Christianity”.

Mogoeng argued that Article 12 of the code, which prevented judges from being caught up in political controversies related to “home-soil political controversy”, which would be justiciable in South African courts. He maintained that the resolution of the Palestine-Israel conflict was not such a political matter.

In its responses, Africa For Palestine challenged Mogoeng’s interpretation of Article 12, by pointing precisely to the Masuku matter, which Mogoeng had dismissed as a “red herring”. 

“It has nothing to do with what I said. It was about hate speech. Mine was a love, forgiveness and peace speech,” the chief justice had maintained.

Desai argued that rulings by the Equality Court and the Supreme Court of Appeal had both considered the Masuku case a “political” one, which highlighted that the Palestine-Israel conflict “is indeed an intense political controversy among South Africans in South Africa”.

Slamming Mogoeng’s interpretation of Article 12 as “untenable”, Africa For Palestine argued that the Masuku case demonstrated how the Palestine-Israel conflict “is a ‘home-soil political controversy’” . 

JSC secretariat spokesperson Sello Chiloane said that Mojapelo’s options now included asking for further submissions from the parties, making a finding, or referring it to the Judicial Conduct Committee to set up a tribunal for further investigation. 

When Zondo referred the matter to Mojapelo he found that the complaint did not warrant impeachment, and that any sanction would derive from section 17(8) of the Judicial Service Commission Act where remedial action includes a written warning, a reprimand, an apology to the complainant, appropriate counselling, attendance of a training course or any other corrective measure. 

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Niren Tolsi
Niren Tolsi is a freelance journalist whose interests include social justice, citizen mobilisation and state violence, protest, the Constitution and Constitutional Court, football and Test cricket.

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