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 (JCC) found Mogoeng guilty and ordered him to apologise unconditionally for becoming involved in political controversy through his remarks in the online seminar hosted by The Jerusalem Post on June 23 last year.
Africa 4 Palestine, a pro-Palestine SA organisation former known as BDS South Africa, laid a complaint about Mogoeng’s comments.
The committee further ordered Mogoeng to unreservedly retract and withdraw a statement he made on July 3 during an Africa-wide online prayer conference held in support of his right to speak his mind as a Christian. At that time, after emphasising the biblical basis of his webinar remarks and his message of love for all people, he said he would not retract or apologise for his words — “Even if 50 million people can march every day for the next 10 years, for me to retract and apologise for what I said — I will not do it.”
Christian and Jewish groups quickly came to Mogoeng’s defence after he came under attack from the ANC and anti-Israel groups following the webinar. A petition posted by pro-Israel Christian organisations, calling on President Cyril Ramaphosa to support Mogoeng’s Constitutional right to freedom of speech and freedom of religion has garnered over 95 000 signatures.
During the controversial webinar last June Mogoeng lamented that the South African government’s adoption of a lopsided attitude toward the Israel-Palestinian conflict which denied it the opportunity to have greater influence in helping to broker peace in the region. He also stated that as a Christian he loved the Jews and Israel, and he loved the Palestinians and Palestine.
In an op-ed article in July, Freedom of Religion South Africa wrote: “In conclusion, whether or not we agree with the CJ’s personal beliefs or statements made during the recent webinar, we should all be worried about the current attack on him. It is clear, from a political point of view, that the issue is not so much whether or not the CJ acted improperly by commenting on a political controversial issue, as it is a blatant attempt to (at the highest level) silence speech which is perceived to be ‘politically incorrect’. And if the ‘thought police’ will not hesitate to go after the CJ, they will certainly not hesitate to go after “ordinary citizens” like you and me.
“The fundamental rights to freedom of religion, belief and opinion (section 15), and also to freely give expression thereto (section 16), are vital to any constitutional democracy. When these are eroded or taken away, democracy is no longer worth the name. For this reason, it is puzzling that organisations such as the Council for the Advancement of the SA Constitution (CASAC), who according to their founding statement ‘seeks to advance the SA Constitution as the platform for democratic politics and the transformation of society’ and ’embraces the contestation of ideas’, has sided with the CJ’s critics on this issue. It seems that, in South Africa, some ideas are more equal than others after all.
The JCC has 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 he 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.”
An intercessor source close to Mogoeng told Gateway News this evening that they were currently in a time of consecration and were “seeking the face of the Lord even about this” and that the chief justice “will do what the Lord tells him to do”.
Mogoeng is democratic South Africa’s longest-serving chief justice. He was appointed in September 2011 and is due to complete his 10-year term this year.
TO BE CONTINUED…
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