Desai defiant of censure for anti-Israel activism

Retired Judge Siraj Desai, a supporter of the Boycott, Divestment, Sanctions (BDS) movement, remains defiant in spite of being found to have conducted himself in a manner unbecoming of a judge by getting involved in anti-Israel political controversy.

This was the finding of the Judicial Conduct Committee (JCC) last week following a complaint lodged against him by the South African Zionist Federation (SAZF) two years ago.

Desai was found to have contravened the code of judicial conduct relating to his signing of a BDS statement condemning Israeli policies on Palestine in his capacity as a high court judge.

The 17-page finding in terms of Section 17 of the Judicial Service Commission Act, came 22 months after Judge Nambitha Dambuza heard the matter. It stemmed from the SAZF’s lengthy complaint about Desai’s anti-Israel activism between 2009 and 2020 connecting him to the BDS movement against Israel and the pro-Palestinian movement.

The former Western Cape High Court judge, who is the Legal Services Ombud – set up to safeguard the integrity of the legal profession in South Africa – has been warned not to participate in or become involved in any political controversy or activity in future unless it’s necessary to do so for the discharge of judicial duties.

The SAZF has welcomed the finding. However, Desai remains unrepentant and unapologetic in his condemnation of Israel.

He said the JCC ruling was an attempt to “muzzle” him, and Dambuza’s ruling against him “places her on the wrong side of history”.

Dambuza’s judgement was “surprising to say the least”, Desai said. “I’m effectively muzzled from expressing any view on an ongoing crime against humanity. 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.”

Desai was seen at an anti-Israel protest in Cape Town two months ago, where the Israeli flag was burnt and Hamas flags and those of terrorist organisation Hezbollah were held aloft.

His spokesperson, Professor Usuf Chikte, who is also the spokesperson for anti-Israel lobby group the Palestine Solidarity Campaign, has lashed out at the JCC finding and accused the SAZF of conducting a “vindictive and shameful” campaign that had “all the hallmarks of a Mossad operation”, describing the SAZF’s complaints as “spurious and fabricated”.

Chikte lambasted Dambuza’s finding, describing it as “carelessly written”, with grammatical and factual errors, and described the judge’s “far-reaching” decision which cautioned Desai “without rhyme or reason to avoid controversy” as “muddled” and coming across as “vacuous”.

In a scathing statement, Chikte accused “Israeli lobbyists” of attacking efforts to promote human rights.

SAZF spokesperson Rolene Marks told the SA Jewish Report that Chikte incorrectly claimed that the (JCC) finding against Desai was a deliberate attempt to inhibit his work in the human rights space.

“This misleading point was rebutted in Justice Dambuza’s judgement, which indicates that the Judicial Service Commission (JSC) Act and code seeks to ‘maintain and promote public confidence, integrity, and the independence of the office of a judge’. It’s therefore not open to Judge Desai to assert right to freedom of association or human rights activism when provisions of the code are invoked. Justice Dambuza concludes that ‘to this extent, the judge conducted himself in a manner unbecoming of a judge’. This is in direct reference to a complaint that was established in terms of Section 17(4)(b) of the Act.”

“Judge Desai hides under the banner of human rights activism and freedom of speech,” Marks said, “while using his high office as a judge to support the antisemitic BDS movement whose goal is the destruction of the world’s only Jewish state. This, alongside lending support to internationally proscribed terror organisations like Hamas as well as regimes with genocidal charters at their core, is not conduct becoming of a judge of the law.”

She said the JCC had handed down its findings, and the rule of law had run its course.

“Judge Desai ought to respect the JCC and uphold its findings instead of continuing to involve himself in further political controversy.”

Attorney and political commentator Daniël Eloff said, “The fact that Judge Desai still refuses to acknowledge that his involvement in various political controversies amounts to a violation of the code of judicial conduct simply underscores his glaring partiality and inappropriate political support of anti-Israel movements and campaigns.”

More shockingly, he said, is his refusal to abide by and accept a ruling of the JCC, “which unfortunately puts into question his loyalty to the rule of law and respect for the judiciary and its structures”.

“Regardless of what one might feel about Israel, the fact that Desai has repeatedly doubled down on his position regrettably puts a question mark over the impartiality which was to be exercised by him during his career. This is exactly why stringent ethical constraints are in place for those serving our judiciary,” Eloff said.

Some experts in the legal fraternity say that those that celebrated Chief Justice Mogoeng Mogoeng’s censure by the JCC for his engagements in a political controversy will now have reaped their just rewards in Desai being censured for his involvement in the BDS movement.

Said someone who wishes to remain anonymous, “It is of course astonishing that after Judge Desai was admonished in Judge Dambuza’s report for engaging in political controversy and being warned not to do so again, that his spokesperson would make so many outrageous and controversial remarks in his response to the delivery of the judgement. This shows a high level of recalcitrance, and a failure to abide by that judgement. The hostile attacks on the wording of the judgement and on Judge Dambuza’s character are in particular to be decried.”

Sara Gon of the Institute of Race Relations said Desai’s sanction was “merely a warning not to do it again.

“Mogoeng, however, was not warned. He was directed to ‘unreservedly retract’ his statements within 10 days. It is arguable whether stating his love for Israel as a Christian warranted a harsher decision than signing a BDS petition,” said Gon.

The SAZF said it would continue to monitor Desai’s actions, and wouldn’t hesitate to hold him accountable for any further violations of the JSC Act and code.

Desai wasn’t available for further comment.