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Judicial panel continuing deliberations on Mogoeng’s appeal in Israel matter

The Judicial Conduct Committee’s (JCC’s) appeal panel is continuing its deliberations on outgoing Chief Justice Mogoeng Mogoeng’s appeal against a misconduct finding for his remarks critical of South Africa’s foreign policy on Israel.

“The JCC appeal panel is still seized with the appeal,” Sello Chiloane, the secretary of the committee, said on Friday afternoon.

In March, the JCC found that Mogoeng had contravened the Code of Judicial Conduct with comments made during a webinar in June 2020 and subsequently at a prayer meeting where he declared that he would never apologise for the views he expressed. 

In the webinar, hosted by The Jerusalem Post, 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 panel is weighing written representations by Mogoeng and the complainants, Africa4Palestine, the South African Boycott Disinvestment and Sanctions Coalition and the Women’s Cultural Group.

Africa4Palestine earlier this week wrote to the JCC asking to be allowed to make oral representations but this was declined because Mogoeng is not making an oral argument in his appeal.

In its March ruling, penned by Judge Phineas Mojapelo, the JCC stressed that “judges are to stay out of politics” and may only pronounce on the legal and constitutional boundaries that apply to said 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.”

Mojapelo ordered Mogoeng 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 was to include a retraction of his statement at a prayer meeting, where he said: “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 this “brazenly defiant”, and 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.

During the webinar, he prefaced his remarks by saying he was bound by the foreign policy adopted by the executive. But he revindicated the right to criticise policy, and even the law and the Constitution, in his capacity as a private citizen.

The JCC had disagreed, holding that judges forsook this comfort when they accepted appointment to the bench.

Mogoeng rejected Mojapelo’s ruling as “narrow-minded, flawed and superficial”. 

At a prayer meeting in March this year, a week after it was issued, Mogoeng said: “The Lord gave me rock-solid grounds to appeal.”

Of the instruction that he read a scripted apology, he added: “That is the most unusual thing I have ever seen. It’s almost as if it was designed to trash you, to reduce you to nothing, to put you in your place. So I am going to appeal that for the sake of the judges and the magistrates who will find life impossible if they were to be subjected to this kind of thing.” 

Mogoeng is scheduled to step down as chief justice in October. But his decision to take accumulated long leave at the beginning of May, means that he has effectively ended his term early.

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