It’s not about religion, it's about politics: Conduct committee orders Mogoeng to apologise

A defence founded in freedom of speech and Christianity was not enough to save former chief justice Mogoeng Mogoeng from having to apologise for comments he made about Palestine and Israel in a 2020 webinar.

A judicial conduct appeal committee has found that Mogoeng must apologise within 10 days for the comments, which were challenged by Africa4Palestine, the SA BDS Coalition and Women's Cultural Group. 

The organisations filed complaints with the Judicial Service Commission, which instructed a judicial conduct committee to investigate. In March 2021, the conduct committee ordered Mogoeng to apologise and he appealed, leading to the latest finding of misconduct. 

During the webinar, Mogoeng was asked about his love for the Jewish people, for Israel, for the state of Israel.  He referred to Biblical scripture, saying: “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.’

“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.”

The majority ruling found that not only did Mogoeng intrude on the territory of the executive but that statements “were of such a nature that they could diminish the public confidence in the integrity of the judiciary”. 

The decision is both methodical and scathing in its assessment of Mogoeng's conduct. 

“By publicly stating that he could not ‘as a Christian do anything other than love and pray for Israel’ because of the fear that to hate Israel would ‘only attract unprecedented curses upon our nation’ and articulating a policy position that was different from that of the government, the chief justice missed the opportunity of invoking our human rights- inspired constitution as an instrument that could be employed to effect changes in Israel-Palestine conflict,” Judge Dumisani Hamilton Zondi wrote. He was supported by Judge Nambitha Dambuza. 

“The fact that the constitution and the code do not absolutely prohibit a judge from performing non- judicial function does not mean that in the execution of such function, a judge may make pronouncements, which may threaten his or her ability to perform his or her judicial function or undermine the doctrine of separation of powers.

“The finding that the chief justice was involved in extrajudicial activities which are incompatible with the confidence in and the impartiality of judges, was correct.” Zondi is a judge at the Supreme Court of Appeal and has served on that court since 2014. 

Missed opportunity

Zondi also seemed to point out a legal opportunity that Mogoeng missed by not challenging the constitutionality of section 14 of the judicial code of conduct, on which the complaint was based. 

He said the initial conduct committee ruling, penned by Supreme Court deputy judge president Phineas Mojapelo,  was not asked to consider whether the code of conduct for judges was constitutional. 

“There was no challenge to the constitutionality of the code. Had the constitutionality of article 12 of the code been raised, the complainants would have been afforded the opportunity to deal with it and Mojapelo DJP may well have found in favour of the chief justice, which would have resulted in the dismissal of the complaints grounded on article 12.

Conduct not to be encouraged 

Zondi also said that while other judges had previously spoken publicly about political issues, this practice should not be encouraged.

“It is significant to note that in recent years, speeches and lectures by sitting judges in which they have been critical of the conduct of certain public institutions, have been tolerated. But the fact that such speeches and lectures have been tolerated, does not mean that they should be encouraged.”

He added that extrajudicial conduct should still observe the rules of the code of conduct.

“The involvement of a judge in extrajudicial activities is not, however, unconstrained. The article imposes a limit. He or she may not be involved in extrajudicial activities that are (a) incompatible with the confidence in or the partiality or the independence of the judge; or (b) affect or are perceived to affect the judge’s availability to deal attentively and within a reasonable time with his or her judicial obligations. This inquiry is, however, concerned with article 14(2)(a), not 14(2)(b) of the code.” 

A second member of the panel, Judge Nambitha Dambuza agreed with Zondi's finding, saying “there can be no doubt that the CJ’s utterances fall within the realm of “political controversy or activity”. 

“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. They accede to limitations to their own freedoms in order to promote the rights of other citizens for the public good,” Dambuza said. 

Meanwhile Judge Margaret Victor penned a separate minority ruling, which differs significantly with the majority view.

“Had I commanded the majority, I would have upheld the appeal in its entirety, setting aside the findings of Mojapelo DJP and, importantly, setting aside the remedial action that flowed therefrom. The remedy imposed by Mojapelo DJP was calculated to humiliate and crush Mogoeng CJ. It was inappropriate and I am pleased that, though my colleagues and I differ in our approach to this matter on appeal, we are in agreement that the remedial action as set out by Mojapelo DJP is warranting of interference and censure,” Victor writes. 

Victor says the matter should be contextualised adequately, in terms of the constitution. 

“The views of Mogoeng CJ are acceptable coming from anyone, including a chief justice, who is advocating for peace. His comments are no different from saying that the internal wars in Ethiopia and Afghanistan should come to an end by mediated peace solutions ... In my view it is clear that the context is consistent with a plea for peace. There is no political interference that is intended, whether direct or indirect,” she says.