The controversy began when South Africa’s Chief Justice Mogoeng Mogoeng took part in a webinar with SA’s chief rabbi, Warren Goldstein. The event, in June 2020, was hosted by the Jerusalem Post and was headlined: Two Chiefs, One Mission – confronting apartheid of the heart’.
Part-way through the event, the moderator asked the CJ a question. It was hedged around with suggestions that the CJ might not be able to answer the question, given his position as a judge, but the question was asked anyway. Basically, it probed what the CJ thought about relations between SA and Israel, and whether they should be improved?
The CJ had no hesitation in responding, and his answer made headlines for days. Basically, he said that he knew that the government’s policy on Israel was ‘binding’ on him. But every citizen was entitled to criticise the law and policies of thir country, ‘or even suggest that changes are necessary, and that’s where I come from.’
Then he outlined what he thought was wrong and the correct way ahead, according to his view on the matter.
Soon there was a complaint – and later two more – laid with the Judicial Service Commission. The first was by an organisation called, ‘Africa 4 Palestine’. Then came the SA Boycott Disinvestments and Sanctions Coalition (BDS) and the Women’s Cultural Group (WCG), all within a month of each other.
The proper procedures were followed scrupulously, with the CJ being offered opportunities to respond to all the complaints. His response was partly shaped as a defence of his freedom to express his religious views – he is well-known in SA to be a devout member of a Christian church, an ordained pastor in the Redeemed Christian Church of God. His outspoken comments and apparent religious conservatism have made headlines in the past, and he is on record as saying that ‘God wanted him to be the Chief Justice’.
In response to the complaints, a recently-retired provincial deputy judge president, Phineas Mojapelo, was asked to write the decision for the conduct committee and he began by outlining the legal and ethical framework against which he would have to consider the complaints. He also looked in detail at SA’s code of judicial conduct, which says, among other things, that judges should not ‘become involved in any political controversy’, unless it was a necessary part of a case they were hearing.
The code also says that judges must recuse themselves from a case ‘if there is a reasonable suspicion of bias based upon objective facts’. Judge Mojapelo mentioned this section because at least one of the complaints pointed out that a case dealing with Israel was pending before the constitutional court and that the CJ should recuse himself from involvement in it.
The judge looked at how other countries approach the question of judges’ involvement in political issues, at the UN’s Bangalore Principles of judicial conduct, at other documents that would give a broad background to the issue – and, of course, at the responses given by the CJ to the complaints against him.
‘Judges are to stay out of politics,’ said Judge Mojapelo, summing up the situation under SA’s law and judicial ethics. They 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 bais of any preconceived notions – not even religion – however committed to those notions. That is what the constitution and their oaths or affirmation binds them to.’
A number of cases heard by the SA courts illustrated how easy it is for judges to find themselves presiding in matters that raise international relations and policy, he said.
But ironically, some dramatic remarks made by the CJ in response to his reported comments at the webinar won even more coverage than the original statements, and some of these were included as part of the complaints.
Stressing that he would never apologise for his remarks at the webinar, he said, ‘Even if 50 million people can march every day for the next 10 years for me to retract or apologise for what I said, I will not do it. … there will therefore be no retraction, there is nothing to retract. There will be no apology. … I will not apologise for anything. … If I perish, I perish.’
Judge Mojapelo said these comments ‘exuded a self-righteous view’ even though judges had a duty ‘to publicly accept their own peer review process … and to strengthen its credibility.’
He found that several of the original complaints against the CJ had been ‘established’. These included contravention of the code of conduct by involvement in extrajudicial activities incompatible with confidence in and the impartiality of judges, as well as failure to respect the separation of power.
He must now apologise and issue a retraction as laid down by the decision. That retraction states his unconditional apology for becoming involved in political controversy through his remarks at the webinar. It ‘unreservedly’ retracts the statement about refusing to apologise even if 50 million people were to march for him to do so. And it requires him to reaffirm his recognition of the authority of the JSC and its conduct committee ‘to decide on any complaint of alleged judicial misconduct against me and all judges’ in SA.
The CJ is to read this apology within 10 days at a meeting of the constitutional court judges and then release a signed copy to the media.
Quite how the CJ will respond is unclear, but given his adamant comment that he will never apologise, some legal commentators have predicted a ‘crisis’ is imminent. What makes the matter even more delicate is that a number of allegations have recently been made claiming that some judges have taken bribes to advance the political career of former President, Jacob Zuma. Critics of the judiciary, many of them supporters of Zuma, are increasingly vocal and it is a time when good, strong judicial leadership is needed – rather than divisions, or any further ‘crisis’.