Chief justice under fire for speaking out about Israel

JORDAN MOSHE AND TALI FEINBERG

CASAC head Lawson Naidoo made this comment after Mogoeng this week came under fire from political parties and watchdog groups after comments made in support of Israel.

“We are denying ourselves the opportunity of being a game changer in the Israeli-Palestinian situation,” the chief justice said during a webinar discussion between him and Chief Rabbi Dr Warren Goldstein hosted by the Jerusalem Post. “The forgiveness that was displayed by President Mandela is an asset that we must use around the world.”

Mogoeng expressed support for Israel and the Palestinians, saying, “I’m under an obligation as a Christian to love Israel, to pray for the peace of Jerusalem, and I cannot as a Christian do anything other than love Israel because I know hatred for Israel will attract unprecedented curses.”

The judge also stressed that he was bound by the policy of the South African government, and didn’t reject it.

The department of international relations and cooperation (DIRCO) said on 29 January, “South Africa continues to support international efforts aimed at the establishment of a viable Palestinian state existing side by side in peace with Israel within internationally recognised borders.”

In spite of this, the African National Congress (ANC) this week reprimanded Mogoeng, expressing concern about his “apparent support for apartheid Israel”.

“The chief justice has sought to turn the matter of the rights of the people of Palestine into a religious argument, which it isn’t,” reads the ANC statement. “We respect his religious choices, but South Africa is a secular state, and its judiciary must be secular.

“The chief justice is entitled to his personal views, however when echoed in public, such views should never be at the centre of societal polarisation.”

The Economic Freedom Fighters called on the judge to retract his comments, while #Africa4Palestine plans to submit a complaint with South Africa’s Judicial Service Commission (JSC).

The ANC’s reaction has drawn criticism from Jewish and Christian communities, especially in regard to the rights to freedom of speech and religion.

“The chief justice’s heartfelt sentiment exposed the boundaries of the ANC’s support for the constitutional right of freedom of religion, thought, and opinion,” said Rowan Polovin, the national chairman of the South African Zionist Federation. “This assault isn’t simply on the chief justice, but on the rights of many millions of South Africans.

“Even office bearers like himself have the right to express themselves freely, and to be treated equally,” Polovin said. “The bullying response of the ruling party is a device employed by the antisemitic BDS [Boycott, Divestment, Sanctions] movement when any public figure expresses support of Israel.”

Similarly, Christian leaders Reverend Reuben Chapasuka, Pastor Barry Isaacs, and Apostle Mpho Mosoeu criticised the ANC for targeting believing Christians like Mogoeng.

However, legal and political commentators have expressed doubt about the claim that Mogoeng has full freedom of expression.

Political analyst Brooks Spector said that the South African Constitution guaranteed the right to freedom of speech, but stressed it wasn’t necessarily the province of government officials or public servants, nor the judiciary.

“Wise jurists try not to speak about the specifics of policies and public issues as a matter of principle because it may have implications for their opinions.

“Mogoeng let his personal feelings get in front of his judicial responsibility. Suppose he was strongly opposed to Israel and its legitimacy, that would have been equally controversial. This is something of a self-inflicted wound on Mogoeng’s part.”

Spector said, however, that it wasn’t necessarily incumbent on a chief justice or the courts to agree with government policy.

“That’s not his job,” he said. “He’s not a loyal supporter of the government position. His role is to judge independently various matters when they come before him. Government can’t have it both ways.”

Advocate Mark Oppenheimer said the conduct of judges was subject to the rules found in the Code of Judicial Conduct of 2012 containing a section listing potentially problematic behaviour which judges have to avoid.

“One of these involves constraints on free association, like avoiding being aligned with a particular political party and not getting involved in political activity or controversy,” he said. “The question is whether Mogoeng’s comments fall under this section.

“They are controversial in a certain sense. If we focus on the wording of the code, he hasn’t engaged in party politics. His behaviour is considered controversial only because Africa4Palestine has made it so. Any statement it takes issue with is going to be branded controversial, but the statement must be viewed on its own terms.”

We need to bear in mind that while the code talks about judges having rights as citizens, some of them are curtailed because they are judges, Oppenheimer said. These potentially include rights like freedom of speech. “For example, a judge wouldn’t have the freedom to speak publicly about a case that was still being heard by him,” he said.

Regarding Mogoeng’s involvement in the case against Bongani Masuku, a hate-speech matter involving the SAJBD, he said, “We could ask if his involvement creates a bias problem. However, none of the parties in the case were involved in the talk, so Mogoeng has not engaged with the case outside of court.

“His talk had no bearing on the facts before the court, and there is no reasonable apprehension that the chief justice has a bias in that case.

“The complaint brought by Africa4Palestine smacks of political opportunism. By attacking the chief justice, it aims to get press attention for its anti-Israel view. Justice Mogoeng has appeared on many platforms, and his religious views have been shared on many occasions, yet there have been no complaints to the JSC until now.”

However, Naidoo said this incident set “a dangerous precedent” of commenting on government policy, and his organisation is concerned for that reason.

For example, if Mogoeng had spoken about a different conflict, or said that South Africa shouldn’t be a member of BRICS [the Brazil, Russia, India, China, South Africa group of states], “we would have had a similar response”.

Naidoo emphasises that judges do speak in public outside courts on issues relating to the law, but “in this case, he was straying out of his lane”. Furthermore, his comments were religious in nature, and it’s vital to maintain the separation of religion and state.

Asked about other judges that speak out and take stances on various issues, Naidoo said that perhaps they should also have been called out. “It may have an impact on their ability to sit in a case pertaining to that issue, and they may have to recuse themselves, or the parties will ask them to.”

Regarding the hate-speech case, he thinks that an apology could go a long way to rectifying the pressure on the chief justice to recuse himself.