JCC sanction on Mogoeng may be disproportionately harsh, says FOR SA

The sanction imposed by the Judicial Conduct Committee on Chief Justice Mogoeng for contravening the Judicial Code of Conduct by becoming involved in political controversy may be disproportionately harsh, says Freedom of Religion South Africa (FOR SA).

The JCC has given Mogoeng 10 days to withdraw and apologise for comments he made on Israel during a webinar in June last year and for later stating that he would never apologise for his comments.

The sanction is arguably too harsh in circumstances where “political controversy” is not defined in the code, says FOR SA in an opinion article published on its blog.

“It should also be noted that the CJ’s only ‘offence’ was his expressed hope that South Africa would draw on its own painful history to bring about peace in the Middle East. Many South Africans – irrespective of their religious beliefs, or lack thereof – would hold that the desire for peace is a noble one, not deserving of (this kind of) censure,” writes FOR SA.

The full opinion article reads:

Freedom of Religion South Africa (FOR SA) has taken note of the decision by the Judicial Conduct Committee (JCC) on 4 March 2021 in the respective complaints by Africa 4 Palestine, SA BDS Coalition and Women’s Cultural Group against Chief Justice Mogoeng Mogoeng (CJ), following certain comments made by the CJ in a webinar hosted by The Jerusalem Post.

It is important to note that the case revolves around the single issue of whether (or not) the CJ had breached the Code of Judicial Conduct (the Code) in that he became involved in “political controversy” in circumstances where it was not necessary for the discharge of judicial office (article 12(1)(b)). The JCC’s decision was that the CJ did breach the Code and as a result, they directed him to apologise for becoming involved in political controversy and to further retract his subsequent statement that he stands by his refusal to retract or apologise for anything he had said “even if 50 million people were to march every day for 10 years for him to do so”.

Importantly, the JCC did not take issue with the CJ’s statements that he loves, and prays for the peace of, Israel and that as a Christian he can do no other as hatred for Israel would attract a curse upon our nation. Instead, it focused on the problem of the CJ’s criticism of SA’s foreign policy towards Israel and his suggestion that there was an alternative (and better) approach. What made it particularly concerning was that the criticism took place on an international platform (where it was evident that the CJ was invited to speak because of his high judicial office) and that his statements were made on the eve of the Executive making its statement on the Israeli-Palestinian situation at the UN Security Council.

The JCC found that the CJ’s comments in this regard, and in this context, was a breach of the rule in the Code which prohibits judges from commenting on political matters. The purpose of this rule is to protect the independence of the judiciary – not for the judges themselves, but for litigants who need to have confidence that judges approach their matters with an open, and unbiased, mind.

As a legal advocacy organisation that is both faith and politically neutral, FOR SA does not support, or oppose, the CJ’s statements with regard to Israel. We do support the CJ’s constitutional right to religious freedom (s 15) and freedom of expression (s 16), which rights belong to everyone regardless of profile or position.

However, from a legal point of view, a legitimate argument can be made that the CJ voluntarily agreed to a limitation of these rights when he took up office and that he therefore agreed to be bound by the Code which (for the aforementioned reason) places certain restrictions on judges in terms of their conduct on, and off, the bench. If the CJ (or any other judge) is of the opinion that certain restrictions in the Code are an unreasonable and unjustifiable infringement on the right to religious freedom and/or freedom of expression, it is of course open to him (or any other judge) to challenge the constitutionality of the Code of Conduct itself.

While the CJ had (on a plain reading of the Code, and in the JCC’s opinion) overstepped the mark in this instance, it is arguable that the sanction imposed on him by the JCC is disproportionately harsh – particularly in circumstances where “political controversy” is not defined in the Code. It should also be noted that the CJ’s only “offence” was his expressed hope that South Africa would draw on its own painful history to bring about peace in the Middle East. Many South Africans – irrespective of their religious beliefs, or lack thereof – would hold that the desire for peace is a noble one, not deserving of (this kind of) censure.

In terms of the JCC’s decision, the CJ has 10 days to make his apology.

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