Mogoeng lodges appeal, says findings based on ‘flawed and superficial’ reasoning

Chief Justice Mogoeng Mogoeng has lodged an appeal against all of the findings against him by the Judicial Conduct Committee (JCC) for remarks he made about Israel during a Jerusalem Post webinar in June last year.

The 67-page ruling against him by Judge Phineas Mojapelo of the JCC was “needlessly voluminous” and his reasoning was “disturbingly flawed and superficial”, says Mogoeng in his grounds of appeal document which he submitted to the Judicial Services Commission on Friday.

Mogoeng also criticised Mojapelo’s “wholly inappropriate” order that he read out a scripted apology and withdrawal of his remarks in front of Constitutional Court judges as reminiscent of the action of an authoritarian primary school principal and as “something intended to bring one down
to his knees — to crush, to humiliate”.

In the conclusion of his appeal document, Mogoeng says: “I contend that this matter was wrongly decided, without any regard for or proper understanding of, the facts, the Code [Judicial Code of Conduct] and its entrenched and practicalised understanding, our jurisprudence and the Constitution. And all findings of guilt and the remedial action must therefore be set aside.”

Mogoeng said Mojapelo had misdirected himself by finding that complaints made against him by Africa4Palestine, the SA BDS Coalition and the Women’s Cultural Group — which clearly were against his Christian and biblical statements — did not revolve around constitutional rights to freedom of religion, belief, thought, opinion and freedom of expression.

Nor had the judge recognised that those constitutional rights supersede the code.

Judges, as citizens, are entitled to the full enjoyment of these rights and the “JCC’s poorly reasoned decision is a danger to the proper enjoyment of these rights, hence this appeal”, he said.

He also said Mojapelo had erred by finding him guilty of involvement in political controversy for criticising the official policy of the South African government towards Israel, while the government does not have an official policy towards Israel that is at variance with any of the statements he made on the Jerusalem Post webinar.

“After a diligent and thorough search, I vouch for the fact that there is no official policy of the South African Government toward Israel that contradicts any part of what I actually said, as opposed to what has been and is being put in my mouth.

“Even the two agreements signed by President Mandela and President Mbeki with Israel do not contradict anything that I have said,” he said.

Mogoeng emphasised that his comments were biblically based, pro-love, pro-peace and pro finding solutions to enhance mutually beneficial coexistence.

He said the judge’s conclusion that he had got involved in political controversy was apparently influenced by simply accepting “virtually everything” the complainants said and an “irrelevant” statement by the SACC while “unreflectingly” rejecting everything he said.

Mojapelo had also erred in finding that he had participated in proscribed extra judicial activity by participating in the webinar, he said. By his flawed logic Mojapelo himself had been guilty of transgressing the code through an article he wrote in 2011,criticising the president’s constitutional power to nominate and appoint a chief justice. Mogoeng also cited other senior judges whose constitutionally-protected outspokenness on contentious issues like land equity and the Palestine-Israel qualified for breaching various clauses of the code according to the judge’s reasoning.

Mogoeng also accused Mojapelo of misdirection for insinuating “that I was possibly involved in some conspiracy with the Israeli Government” and endorsed alleged Israeli injustices against Palestinians.

“The learned Judge inexplicably ignored my profession of love for both [Israelis and Palestinians] and wrongly held me out as pro-Israel and anti-Palestine.” he said.

The chief justice also said that Mojapelo had misconstrued remarks he had made during a prayer meeting as “brazen defiance” of the JCC before it had rendered its decision.

“I in effect said that I would not apologise or retract ‘unless forced by the law’ to do so,” he said. ‘

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