Mogoeng appeals as commentators call out ironies

As the deadline for him to apologise drew to its final hour, Chief Justice Mogoeng Mogoeng announced that he had chosen to appeal the Judicial Conduct Committee’s (JCC) ruling. Meanwhile, a number of highly respected political commentators have chosen to defend him.

The judgment, made on 4 March 2021, ruled that the chief justice had 10 days to apologise for comments he made about Israel in a June 2020 webinar in which he said South Africa had a role to play in resolving the Israeli-Palestinian conflict, that he supported both peoples, and as a Christian, he had an obligation to pray for the peace of Jerusalem.

In response to Mogoeng’s decision to appeal the ruling, the JCC announced that it would determine in due course the date on which the appeal would be heard by at least three of its members. The chief justice’s decision to appeal didn’t come as a surprise after he insisted that he would never apologise.

At a public prayer meeting on Sunday, 14 March, after he announced that he would appeal, Mogoeng said, “If I get to the point where there is a judgment that says, ‘You must say you hate Israel and the Jews’, I would rather cease to be chief justice. If I get to the point where they say, ‘Mogoeng, you must say you hate the Palestinians and Palestine’, I would rather cease to be chief justice than do it, because my G-d has instructed me to love and not to hate. I hate evil deeds, I don’t hate anybody.”

Mogoeng also referred to a speech by President Cyril Ramaphosa in 2018 to the South African Jewish community, calling for peace between Israelis and the Palestinians. “Is that not what I called for?” he asked. “Peace and mutually beneficial coexistence? You will never find anything that contradicts what I said, said by the president. Nothing official, nothing.”

A number of respected political commentators have chosen the moment to defend Mogoeng. “This case is full of ironies, the biggest one being that South African politics and anti-Israel sentiment are influencing this decision,” veteran journalist and author Jeremy Gordin told the SA Jewish Report. “That’s the core irony, seeing as Mogoeng is being questioned about if he himself has been influenced by politics.”

While Gordin emphasises that retired Deputy Judge Phineas Mojapelo’s judgment was “strictly based on the judicial code of conduct”, the fact that this matter has been given so much energy and airtime is questionable for anyone looking at the wider political landscape.

“It seems motivated by people’s own motivations, that they are beating the same old drum and that they aim to whack anyone who has any kind of support for Israel. The worst thing is that the groundswell is always anti-Israel, that people don’t see the subtleties. What’s bizarre about this is how everyone seems to have jumped on that bandwagon,” says Gordin.

“As has been noted, not much has been said about Mogoeng’s highly questionable comments about vaccines.”

Gordin points out, as have many others, that “there was nothing remotely objectionable about what Mogoeng said. He didn’t say anything reprehensible; he said everyone should love one another. And for that he gets attacked? The reaction here has been vicious. And it feeds into ‘cancel culture’ … it’s unacceptable.”

Giving the chief justice the exact words of an apology is “just absurd”, Gordin says. “It’s not necessary to embarrass him. Essentially, he had no choice but to appeal. It’s appalling to see the influence of [Ronnie] Kasrils et al, how they turned this into a big case and got away with it. That’s the nub of the matter.”

Gordin expressed similar views in a satirical piece on politicsweb on 11 March 2021, in which he wrote, “It seems bizarrely totalitarian that Judge Mojapelo … opted to force the CJ [chief justice] to apologise rather than just rap him over the knuckles. Very odd, given all that the JSC [Judicial Service Commission] turns a blind eye to.”

Douglas Gibson, the former opposition chief whip and former South African ambassador to Thailand, echoed these sentiments. “One is a little suspicious that the reason for the expeditious and unprecedented action against the chief justice is that it involved Israel,” he wrote on News24. “The truth about the complaint against his remarks is that some complainants are from organisations that hate Israel, don’t hope for peace for Israel, and wish to see it wiped from the face of the earth.

“Judge Mojapelo stated that one of the reasons for finding against the CJ is that his remarks contravened South African foreign policy,’ said Gibson. “With great respect to the learned judge, he seems to be ignorant about foreign policy matters. It’s correct that many people in the governing party hate Israel, but the government itself maintains normal diplomatic relations with Israel as a friendly country. If Mojapelo was correct in his finding, this country’s foreign policy would be hatred of Israel, and support for efforts for its destruction.”

Sara Gon, the head of strategic engagement at the Institute of Race Relations, says, “I’m not surprised that the chief justice decided to appeal. First, because I assume he will have felt that the sentiments conveyed wouldn’t have done the ANC [African National Congress] any harm. Also, there have been more serious statements made by other judges on the same or other subjects, but they’ve been anti-Israel.

“His term ends late this year. An appeal will help kick the issue into touch, although he doesn’t face being impeached for these comments,” she says. Gon points out that considering the delays in dealing with other judges’ “misconduct” in the past, Mogoeng is “unlikely to be under any threat until his retirement”.

South African Friends of Israel spokesperson Bafana Modise told the SA Jewish Report, “We support the appeal, which is in line with his [Mogoeng’s] beliefs that have stood the test of time. He must never compromise these beliefs, irrespective of public pressure. It’s the G-d of Israel who we serve, with no fear or favour. We ask Christians to unite and stand with the chief justice. If he stands alone, soon it will be [our beliefs] they’re coming after.”

A highly respected senior member of the legal profession, speaking on condition of anonymity, told the SA Jewish Report that he thought Mogoeng’s appeal had a good chance of succeeding. Another local legal expert said, “This isn’t a Stalingrad strategy, which wears down the complainants by tenaciously fighting anything they present by whatever means possible. The CJ is fairly exercising his rights in a case where he has reasonable prospects of success.”