The Judicial Conduct Committee (JCC) has found Chief Justice Mogoeng Mogoeng guilty of misconduct for wilfully wading into political controversy with remarks questioning South Africa’s foreign policy on Israel and ordered him to issue a scripted apology.
In a finding released late on Thursday, the committee held that Mogoeng had contravened five articles of the Judicial Code of Conduct, with the initial remarks and his subsequent statement declaring that he would rather “perish” than apologise for what he said.
Mogoeng was ordered to read a three-paragraph message unreservedly apologising for his political comments and reaffirming his respect for the JCC at a constitutional court meeting and to release a signed copy of the text to the media.
The apology also includes a retraction of his earlier statement: “I stand by my refusal to retract or apologise for any part of what I said during the webinar. 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.”
The JCC deemed these remarks “brazenly defiant”. They were made by Mogoeng at a virtual prayer meeting in July last year, in reaction to criticism of his initial remarks on June 12 at a webinar hosted by The Jerusalem Post.
In the webinar he said he believed South Africa would do well to consider adopting a more objective stance on Israel and the Israeli-Palestinian conflict and ventured that “hatred” of the Jewish state could “attract unprecedented curses upon our nation”.
The remarks prompted three separate complaints by the Africa 4 Palestine, the South African Boycott Disinvestment and Sanctions Coalition and the Women’s Cultural Group.
The JCC found that it was an aggravating factor that the remarks came as South Africa was preparing to denounce the annexation of Palestinian territory in a debate in the United Nations Security Council.
It reiterated that “judges are to stay out of politics” and 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.”
The rationale for this is that any position taken by the government may find itself subject to legal review in court, and that adopting a political stance matters that may land before them in court was therefore improper.
The committee found that Mogoeng wilfully strayed into this forbidden area because his opening remarks at the webinar acknowledged that it was a politically charged subject.
It rejected his submission that there was a distinction between politics and policy in this instance. Neither did it accept that freedom of religion offered him cover for the remarks on the state’s stance towards Israel.
“The respondent CJ and all Christians are free to practice their belief within the confines of the Constitution and the law. They, however, like all other citizens, must also observe the lawful restrictions of their chosen profession.”