Chief justice Mogoeng told to retract and apologise for pro-Israel comments

Chief justice Mogoeng Mogoeng has been ordered to apologise for, and retract, pro-Israel comments he made during a webinar in June last year.

The Judicial Conduct Committee found Mogoeng guilty and ordered him to apologise unconditionally for becoming involved in political controversy through his utterances in the online seminar hosted by The Jerusalem Post on June 23 2020.

The committee further ordered Mogoeng to unreservedly retract and withdraw a statement he uttered after a public outcry over his initial comments. He said he stood by his comments and that he would not apologise or retract them — “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,” he said.

An NGO, Africa 4 Palestine, the SA Boycott Disinvestments and Sanctions Coalition (SA BDS Coalition) and a Durban-based Women’s Cultural Group (WCG) complained separately to the Judicial Service Commission about Mogoeng’s comments in July.

The Sunday Times reported in June last year that, in his webinar comments, Mogoeng seemed to base his pro-Israel stance on passages from the Bible.

Mogoeng participated in a webinar entitled Two Chiefs, One Mission: Confronting Apartheid of the Heart with the chief rabbi of SA, Rabbi Warren Goldstein, hosted by The Jerusalem Post.

The moderator, the editor-in-chief of the newspaper, Yakoov Katz, asked Mogoeng about his love for the Jewish people, for Israel, for the state of Israel and his thoughts on the tense diplomatic relations between SA and Israel.

In a long-winded response, Mogoeng began by acknowledging that the policy direction taken by SA was binding on him, as any other law would be.

“So, whatever I have to say should not be misunderstood as an attempt to say the policy direction taken by my country in terms of their constitutional responsibilities is not binding on me. But just as a citizen, any citizen is entitled to criticise the laws and the policies of SA or even suggest that changes are necessary, and that’s where I come from,” he said.

Mogoeng said he was under an obligation as a Christian to love Israel, to pray for the peace of Jerusalem which actually means the peace of Israel.

Citing Biblical scripture, he said: “The first verse I give is in Psalms 122, verse 6, which says: ‘Pray for the peace of Jerusalem, they shall prosper that love thee,’” Mogoeng said. “Also Genesis 12, verses 1 to 3, says to me as a Christian, if I curse Abraham and Israel, the Almighty God will curse me too.

“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 the main, their complaints were that Mogoeng committed wilful or gross negligent breaches of the Code of Judicial Conduct, in that he had become involved in political controversy or activity, which is in breach of code.

The other complaint was that he involved himself in extrajudicial activities which are incompatible with the confidence in and the impartiality of judges, and that he failed to recuse himself from a pending case where there had arisen a reasonable suspicion of bias against one of the parties.

The Judicial Conduct Committee said Mogoeng has to apologise within the next 10 days at a meeting of serving justices of the Constitutional Court, and release a copy of the apology under his signature to the office of the chief justice and to the media in the normal manner in which the Constitutional Court and the OCJ issue media releases.

While the committee dismissed a complaint that Mogoeng should have recused himself from the webinar, it found that Mogoeng became involved in political controversy or activity, and therefore breached the code of conduct.

According to the commission, further complaints established about Mogoeng arising from his utterance at the same webinar were:

— “Contravention of the Code: the use or lending of the prestige of judicial office to advance the private interest of the judge or others;

— “Contravention of Article 14 (1): judicial duties to take precedence over other duties and activities, statutory or others — read with Note 14(i) of the Code: failure to minimise the risk of conflict with judicial obligations, and involving himself in extrajudicial activities that impinge on a judge’s availability to perform judicial obligations;

— “Involvement in extrajudicial activities which are incompatible with the confidence in and the impartiality of judges; and

— “Failure to respect the separation of power in contravention of the Code.”  

The committee said that in considering appropriate remedial action under section 17(8) of the JSC Act, it took into consideration the nature of the contravention, the position of the respondent in the judiciary, the circumstances in which the judicial misconduct arose and the public interest within the broad legal framework as defined by the constitution, the law and the rules of ethics.

“Within that framework, the South African judiciary is and must remain one which does not unduly involve itself in political controversy. It does not use or lend the prestige of judicial office to advance any private interests, whether of its individual members or others.

“It jealously guards its independence, impartiality and public confidence in the courts and respects the separation of power (where appropriate) and justly demands of the other organs of the state to fulfil their constitutional obligations in terms of section 165(4) of the constitution,” it said.

The committee said the more the members of the judiciary complied with its own constitutional, legal and ethical obligations, the greater the public confidence it attracted.

The committee said Mogoeng’s apology should read:

“Apology and Retraction

“I, Mogoeng Mogoeng, Chief Justice of the Republic of South Africa, hereby apologise unconditionally for becoming involved in political controversy through my utterances in the online seminar (webinar) hosted by The Jerusalem Post on 23 June 2020, in which I participated.

“I further hereby unreservedly retract and withdraw the following statement which I uttered subsequent thereto or other words to the same effect: “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.

“I reaffirm my recognition for the statutory authority of the Judicial Conduct Committee of the Judicial Service Commission established in terms of Part 11 of the JSC Act 9 of 1994 to decide on any complaint of alleged judicial misconduct against me and all judges in the Republic of South Africa.”

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