UPDATE | Mogoeng files 39-page appeal over his comments on Israel

03 April 2021 - 15:15
By Franny Rabkin
Chief justice Mogoeng Mogoeng has appealed against a Judical Conduct Committee's finding of misconduct.
Image: Freddy Mavunda Chief justice Mogoeng Mogoeng has appealed against a Judical Conduct Committee's finding of misconduct.

Chief Justice Mogoeng Mogoeng lodged his appeal on Saturday against the Judicial Conduct Committee’s finding of misconduct, and its directive that he must apologise for his public comments on SA’s foreign policy on Israel.

The JCC decision was the first time in SA’s democratic history that a chief justice was found to have committed misconduct.

In a blistering rebuke, retired Gauteng deputy judge president Phineas Mojapelo said Mogoeng breached the code of judicial conduct by becoming involved in political controversy or activity and lending the prestige of judicial office to advance his private interests or the private interests of others.

Mogoeng’s comments were made during a webinar hosted by The Jerusalem Post. Asked by editor Yakoov Katz about the sometimes “tense diplomatic relations” between SA and Israel, Mogoeng said while he considered himself bound by SA’s policy positions, as a citizen he was also entitled to his views.

After quoting the Bible, he said “as a Christian” he had to “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”.

He said despite neocolonialism, which was still causing suffering to Africans, SA had not cut ties with or disinvested from its former colonisers, and its position needed reflection.

Mogoeng’s remarks caused an outcry and led to three separate complaints to the JCC.

Judge Phineas Mojapelo
Image: judiciary.org.za Judge Phineas Mojapelo

Mojapelo said: “Judges are to stay out of politics, and are only permitted to pronounce on the legal and constitutional boundaries that may apply to those politics.

“When called upon to pronounce, they do so on the basis of the constitution and the law, and not on the basis of any preconceived notions — not even religion — however committed to those notions. That is what the constitution and their oaths or affirmation bind them to.”

Mogoeng was directed to “unreservedly retract” his subsequent statement: “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.” 

He was directed to do so within 10 days. On the day of that deadline, on March 14, the JCC secretariat said in a statement that the chief justice had “signified his intention” to appeal.

The Daily Maverick reported that Mogoeng had, in a sermon the same day, doubled down on his refusal to retract his apology and given some clues as to his grounds of appeal. It reported that Mogoeng had said the JCC finding had hinged on Mogoeng’s “undermining of the official government policy of SA towards Israel”, but that no such policy existed.

It quoted Mogoeng as saying: “When policy is made, it can only be made in terms of 85 (2) b of the constitution, together with section 101, subsections one and two of the constitution. There must be a document signed by the president and the minister responsible for that portfolio ... There is no policy on SA towards Israel that contradicts anything that I have said.”

The deadline for Mogoeng's appeal was Sunday, and it his 39-page affidavit was filed on Saturday but signed and dated on Friday.

In his decision, Mojapelo declined to find that there was gross misconduct by Mogoeng, as his defiance was not of “a lawful finding of a statutory investigation and should not be equated to such. It was not sufficient to amount to gross misconduct.”

The implication of this, however, was that if the chief justice were to defy a statutory investigation, such as the JCC process, it may well amount to gross misconduct.