Retired judge Desai fights back against ‘unbecoming behaviour’ ruling

Retired Western Cape High Court judge Siraj Desai has formally appealed against last month’s ruling by the Judicial Conduct Committee that he was guilty of unbecoming behaviour by becoming involved in a “political controversy”.

The finding by judge Nambitha Dambuza followed a complaint by the South Africa Zionist Federation (SAZF) relating to his signing in June 2022 of a Boycott Divestment and Sanctions statement condemning Israeli policies on Palestine.

In the ruling Dambuza said while judges are entitled to hold political views, they exercised these rights subject to the rigours of their calling, including applicable ethical constraints. “This is one of the sacrifices the judges of this country have made,” she said.

“The reason for stringent ethical constraints in relation to judges has been repeatedly pronounced. The Judicial Service Commission Act and the code seek to maintain and promote public confidence, integrity and the independence of the office of a judge and the judiciary as a whole.

“It is therefore not open to judge Desai to assert the right to freedom of association or human rights activism when provisions of the code are invoked.”

Desai was cautioned not to get involved with any political controversy or activity in the future, unless it was for the discharge of judicial duties.

In his appeal Desai said should he fail “the Appeal Tribunal must declare clearly for all judges that they may never publicly condemn the practice of apartheid or other international crimes, that they may never engage in extrajudicial activities to promote the realisation and commend the violation of fundamental human rights”.

Desai said the SAZF, which he labelled an extremist pro-Israel anti-Palestinian group, had accused him of eight counts of misconduct.

The only count which was upheld concerned the signing of the statement. 

He said the statement was not controversial, as Dambuza had found.

“It is not controversial that apartheid is an international crime against humanity or that Israel is perpetrating apartheid against the Palestinian people,” he said.

He referred to the Convention on the UN Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity which came into force in 1970 and which listed apartheid and genocide as crimes against humanity. 

So too did the Rome Statute of the International Criminal Court, of which South Africa was a signatory.

The Constitutional Court, he said, had also repeatedly described apartheid as a crime against humanity.

The characterisation of Israeli policies as being apartheid had become uncontroversial and “quite mainstream”, he said, citing many examples from many international reports, including Amnesty International, Human Rights Watch, the UN Special Rapporteur for Palestine and the Israeli Law Professors’ Forum.

He said the trigger for the statement was Israel’s plan to annex portions of the West Bank, which had been widely condemned as a violation of international law.

“The statement, at the time it was issued, did not meet with any major public debate or discourse. This was hardly surprising as the statement was one among a veritable avalanche of critiques from around the world. It was part of the mainstream normative discourse.”

Desai said the statement was also not political.

He said Dambuza’s reasoning on this, which consisted of only six words without any analysis, was vague and gave no guidance to judges as to which topics are taboo and which are not.

He said whether Israel was perpetrating the crime of apartheid was not primarily a political question, but a legal question which concerned international law, and there was nothing ethically precluding judges from expressing themselves on legal questions.

There was also no evidence he had been wilful or grossly negligent, as was required by the code of conduct to justify a breach finding.

The appeal has yet to be set down for hearing.

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