Mogoeng may be dogged by Israel question into retirement

Although Chief Justice Mogoeng Mogoeng’s decade-long tenure was filled with ups and downs, his comments in support of Israel last year may be the thing that South Africans remember the most.

As he retired this week, the saga remained unresolved. Will he still have to deal with the Israel issue or will it end as he leaves office? Furthermore, where does it leave Israel supporters in South Africa?

Mogoeng was taken to task for comments he made during a Jerusalem Post webinar with Chief Rabbi Dr Warren Goldstein in June 2020, and later at a prayer meeting when he refused to apologise for what he had said.

Africa4Palestine, the Boycott, Divestment, Sanctions South Africa (BDS SA) coalition, and the Women’s Cultural Group laid complaints against him, saying he had flouted rules regarding judicial ethics. The matter was adjudicated by Judge Phineas Mojapelo.

Among other points, the chief justice said in the webinar that, “We are denying ourselves the opportunity of being a game changer in the Israeli-Palestinian situation. The forgiveness that was displayed by President Mandela is an asset that we must use around the world.”

But in March 2021, the Judicial Conduct Committee directed Mogoeng to apologise unconditionally for the statements he made about Israel. He chose to appeal the ruling. That was at the beginning of April 2021, and was the last public announcement made on the issue.

On 11 October 2021, Africa4Palestine released a media statement saying that the chief justice was leaving his office “in disgrace”, with South Africa’s Judicial Services Commission (JSC) failing to resolve his appeal. “The JSC, by its delays, has essentially allowed the chief justice to undermine its own ruling by not settling the matter before the chief justice’s term came to an end,” it said.

Nicole Fritz, the founder and chief executive of Freedom Under Law, explains that “the complaints relating to Chief Justice Mogoeng’s comments about Israel don’t fall away just because he has retired. We have seen a number of complaints processes continue irrespective of retired justices, because what is sought to be disciplined is conduct that took place while they were judges. Often there is a sanction directed towards the individual judge, but also it’s important that the disciplining process be used to educate the public and other members of the judiciary as to what is permitted when one is holding judicial office.”

As for whether the final finding will affect those wishing to express support for Israel in South Africa, “Quite honestly I don’t think it will,” she says. “It wasn’t so much that the expression of support was for Israel per se, it was that as head of the judiciary, he was straying into territory that would make it difficult to see a unified government response from South Africa.

“I think the concern was what he as head of one arm of the government was signalling as to South Africa’s official position, and perhaps suggesting that it wasn’t a coherent view,” says Fritz. “But more concerning, there was fear that his views would create the perception that he would be incapable of determining a dispute that related to Israel in a way that was impartial. So, I think the ruling might chill any comments from any future chief justice regarding Israel, and it should. But I don’t think it will serve to chill anyone else’s expressions of support for Israel.”

Hugh Corder, professor emeritus of public law at the University of Cape Town, told the SA Jewish Report that judges’ service was rather peculiar – they remain on full judicial salary for life, so are regarded as being subject to the judicial code of conduct as a consequence. “Thus, unless some other arrangement has been made, Mogoeng won’t be able to escape the consequences of any of his statements which have affected his standing and reputation, whether they be on Israel/Palestine or the effects of the COVID-19 vaccine.”

Advocate Mark Oppenheimer says Mogoeng’s Israel issue could fade into oblivion if no one pushes for it to be resolved. But with organisations agitating for a conclusion, this is unlikely to happen. “He’s still bound by the contents of the Judicial Services Conduct Act. In addition, retired judges can still be called back for service. Of course, we must bear in mind that this is similar to the complaint being made against retired Judge Siraj Desai [by the South African Zionist Federation]. These cases may affect each other.”

He says it’s important to compare the utterances of Desai and Mogoeng. “Desai had a direct meeting with Hamas, which is regarded as a terrorist group. And he called America the “Great Satan”. Mogoeng said he supported both sides and wanted peace. So, if Mogoeng is disciplined and Desai isn’t, we could have a problem.”

Oppenheimer says these judgements tend to take years, and he was surprised at how quickly Mojapelo ruled against Mogoeng. He points out, “If you have an ongoing disciplinary hearing and you leave your employer, that complaint is moot.” Yet he thinks it’s important that the finding is resolved, “so that other judges know what the rules are”.

Judge Dennis Davis told the SA Jewish Report, “That the chief justice has retired doesn’t prevent the JSC from pursuing the complaint. The problem of whether a sitting judge can criticise South African government policy, in particular foreign policy, remains. I doubt whether this extends to comments about Israel per se, although manifestly, as was evident from JSC hearing, support for Israel – in particular current policy – is likely to elicit criticism.”

A prominent advocate speaking on condition of anonymity says, “Mogoeng allowed himself to get sucked into controversy. Maybe he’s heading towards a political career, or even the pulpit. But he won’t be asked to sit as an arbitrator or on commissions of enquiry.”

There are many who will continue to fight for Mogoeng to support Israel publicly. South African Friends of Israel spokesperson Bafana Modise, says, “We salute him for taking a stand for the state of Israel. We salute him for being bold and unapologetic about his beliefs and Biblical truth. Today, Chief Justice Mogoeng – who was doubted and even mocked for his Christian beliefs – has become the longest serving chief justice in our country. In him, South Africa has a true South African friend of Israel. May South Africa continue to echo his sentiments – to pray for the peace of Jerusalem.”