Desai “dismissive and unapologetic” about breaching code

The South African Zionist Federation (SAZF) this week called for former High Court Judge Siraj Desai to be held accountable for contravening the judicial code of conduct for his anti-Israel views and support of terror organisation Hamas.

“As a citizen, he has every right to be an ardent pro-Palestinian, anti-Zionist advocate,” the SAZF said in its replying affidavit submitted on Tuesday, 12 October, to the Judicial Conduct Committee (JCC). “As a judicial officer, he is constrained by the code, yet he plainly continues to conduct himself without restraint in advocating against Israel and in support of Palestinian causes.”

In the affidavit, the SAZF again accuses Desai of continuing to politicise the judiciary with inflammatory comments that run contrary to the judicial code of conduct. By allegedly doing so, the organisation accuses Desai of undermining the separation of powers between government and the judiciary.

The JCC is part of the Judicial Services Commission which is responsible for dealing with complaints against judges.

The matter goes back to July, when the SAZF lodged a complaint with the JCC accusing Desai of action and conduct “entirely unbecoming of a judicial officer”. The SAZF charged that Desai had, over many years, breached the code of judicial conduct, and accused him of being a politicised judge. It also questioned his recent appointment as legal services ombudsman in which his role is to safeguard the integrity of the legal profession.

For many years, Desai has been an active anti-Israel lobbyist, and has openly shown support for pro-Palestine activities and lobby groups including the Boycott, Divestment, Sanctions (BDS) movement.

Desai lashed back in a 24-page replying affidavit in which he vehemently denied the allegations calling some of them “factually incorrect” and “based on hearsay evidence”. He said the complaint “was without merit”, and requested its dismissal.

Desai submitted that his response must be considered in the context of the following principles, to which he subscribes and which are relevant to this complaint.

“First, silence by judges in the face of injustice and violations of basic human rights, particularly given the history of South Africa, is inconsistent with judicial office,” he wrote.

“Judicial officers, therefore, have a particular duty to confront injustice, promote equality for all under the law, and condemn racism in all its forms.

“Second, judges don’t exist in isolation. They don’t perform their functions in a cloistered monastery isolated from society. They are members of the community with their own beliefs, opinions, and sympathies.”

Quoting the Constitutional Court, his response said “absolute neutrality” was something of a chimera in the judicial context because “judges are human. They are unavoidably the product of their own life experience, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties.”

In this week’s response, Professor Anthony Arkin on behalf of the SAZF, said it was clear from Desai’s reply that he didn’t deny his conduct and the events upon which the complaint was based, accusing Desai of adopting a “somewhat insouciant and dismissive attitude towards the gravity of his violations of the code”.

The affidavit said Desai relied “heavily on background descriptions of his character and pro-human-rights work” but said that the complaint was about his conduct. All the background information amounted to “an attempt to deflect the focus from conduct that is a clear contravention of both the underlying precepts and provisions of the code”.

The response said Desai was “utterly unapologetic in his disregard for the limitations placed upon him by the code”, and accused Desai of being “rather quite brazen” in trying to justify it on human-rights grounds, “which is again an evasion of the issues at hand”.

The response said Desai’s conduct and stance was “incompatible” with the position of the law, as noted by Judge Phineas Mojapelo in the matter between Africa4Palestine and Chief Justice Mogoeng Mogoeng.

In that matter, Judge Mojapelo noted, “The rule is clear: South African judges are prohibited from belonging to political parties; and they are not to be involved in political controversies [debates/disputations], whether linked to political parties or not. Judges are to stay out of politics.”

The SAZF’s affidavit accused Desai of adopting a partisan view of the conflict in the Middle East, and accused him of selectively citing from the contents of the Goldstone Report by failing to mention that the report concluded that both sides of the conflict were guilty.

It said Desai’s failure to mention any blameworthy conduct by Palestinian armed groups again demonstrated that plainly, he was a partisan advocate who supported one party in the conflict.

In a statement this week, the SAZF said, “An officer of the South African court shouldn’t support an anti-Jewish extremist organisation, Hamas.

“For example, last year, during an interview with an Iranian YouTuber, Desai made inappropriate statements likening Ayatollah Khomeini of Iran, an acknowledged violator of human rights, to former President Nelson Mandela. This comparison between the champion of peace, who led the struggle for the fall of apartheid, with a regime that commits gross human-rights abuses, is offensive to South African history and calls into question the moral judgement of Desai.”

The SAZF said that during the same interview, Judge Desai undermined South African foreign policy by referring to the United States, a major trade partner and supporter of our country, as a “Great Satan”.

“This is a clear violation of the code of conduct for the judiciary and the separation of powers inherent in our Constitution. Instead of apologising for these utterances, Judge Desai subsequently and unapologetically reiterated both stances at a political event in Cape Town a few weeks ago,” the statement said.

“In spite of his long-standing links to organisations such as BDS, in 2015, Judge Desai presided over a case brought by BDS activists rather than recusing himself on the basis of conflict of interest.”

The SAZF accused Desai in 2018 of entertaining Palestinian extremist group Hamas during its trip to South Africa.

“Hamas is a violent organisation whose founding charter calls for Jewish genocide and the total destruction of Israel. Using the prestige of the judicial office to promote publicly an extremist organisation is clearly contrary to the precepts underlying the judicial code of conduct, and shows an open hostility towards the Jewish community and the rights of South African minorities,” the statement said.

The SAZF said it didn’t bring this complaint to the Judicial Complaints Commission lightly, and didn’t aim to curtail freedom of expression.

“The SAZF is on record as defending the rights of judges to express their views within the ambit of the judicial code, especially when balanced fairly in the interests of justice. However, with the appointment of Judge Siraj Desai as legal services ombudsman and in the interests of justice and the reputation of the legal profession, it’s essential to hold Judge Desai accountable for his actions and violations of the code of judicial conduct which is unacceptable from a judicial officer.”