Desai appeals his judgement, defiant in anti-Israel stand

Retired Judge Siraj Desai has formally lodged an appeal against a June ruling by the Judicial Conduct Committee (JCC) that found he was guilty of unbecoming behaviour by becoming involved in a political controversy.

An active supporter of the Boycott, Divestment, Sanctions (BDS) movement, he has remained defiant in spite of the ruling and has remained unapologetic for his outspoken criticism of Israel.

The finding by Judge Nambitha Dambuza followed a lengthy complaint by the South Africa Zionist Federation (SAZF) in 2021 relating to the retired Western Cape High Court judge’s decades-long criticism of Israel. The actual ruling relates to the signing by the judge in June 2022 of a BDS statement condemning Israel’s practice of apartheid, and the planned annexation of parts of occupied West Bank.

“The SAZF is currently in the process of reviewing the appeal, and will communicate further in due course,” said SAZF spokesperson Rolene Marks.

Desai’s appeal challenges Dambuza’s findings, and was lodged on the basis that the statements made weren’t controversial, not political, and there had been no finding of wilfulness or gross negligence on his part.

Dambuza said in her ruling that though judges are entitled to hold political views, they exercised these rights subject to the rigours of their calling, including applicable ethical constraints. “This is one of the sacrifices the judges of this country have made,” she said.

“The reason for stringent ethical constraints in relation to judges has been repeatedly pronounced. The Judicial Service Commission Act and the code seek to maintain and promote public confidence, integrity, and the independence of the office of a judge and the judiciary as a whole.

“It’s therefore not open to Judge Desai to assert the right to freedom of association or human rights activism when provisions of the code are invoked,” she said.

At the time of the June ruling, Desai, who is South Africa’s legal ombudsman, described it as a “gagging order”, saying that the order made against him was “surprising to say the least”.

“I’m effectively muzzled from expressing any view on an ongoing crime against humanity,” he said, adding that in granting this order, the judge placed herself “on the wrong side of history”.

“She fails to realise that the violent repression of the Palestinian people by apartheid Israel is the most significant human rights issue of our time. I’m ethically bound to speak out against it, and I intend to pursue the order she made in other forums of the Judicial Conduct Committee,” he said.

The JCC dismissed some of the complaints against Desai. However, it found him in violation of the judicial code for his support of campaigns calling for the boycott of Israel.

Desai was cautioned not to get involved in any political controversy or activity in the future unless it was for the discharge of judicial duties.

In spite of this, he has been seen at anti-Israel protests in Cape Town.

The appeal contends that the statement signed by Desai wasn’t controversial or political, and says the question whether Israel is perpetrating the crime of apartheid isn’t primarily political but legal, concerning international law, and nothing precludes judges ethically from expressing themselves on legal questions.

According to the appeal, there’s also no evidence that Desai had been wilful or grossly negligent, as required by the code of conduct to justify a breach finding.

His appeal, dated 7 July, concludes that if the Appeal Tribunal were to dismiss the appeal, it “must declare clearly for all judges that they may never publicly condemn the practice of apartheid or other international crimes, that they may never engage in extrajudicial activities to promote the realisation, and condemn the violation, of fundamental human rights”.

The appeal has yet to be set down for hearing.