Ruling against Mogoeng has direct implications for Desai

Last week, by a two-to-one majority decision, the Judicial Conduct Appeals Committee (JCAC) found former Chief Justice Mogoeng Mogoeng in contravention of the judicial code, specifically on two points of misconduct.

The first was, “Involvement in political controversy by commenting on, criticising, and proposing changes to the official policy of the South African government towards Israel”. The second, “Participating in an extra-judicial activity that is incompatible with confidence in or the impartiality or independence of judges, by expressing a view on the diplomatic relations between South Africa and Israel”.

The comments by the former chief justice, which were initially made on a Jerusalem Post panel, were made in the context of expressing the desire for peace between Israelis and Palestinians.

The South African Zionist Federation (SAZF) maintains that the former chief justice’s utterances were neither controversial nor sufficient to be involved in “political controversy”. His comments included: “Some possibly then expect of me to be very hateful of Israel and the Jews, I [am] not. I love [the] Jews, I love Israel. I love Palestine. I love the Palestinians. I love everybody.”

The former chief justice felt obliged to apologise because, in his words, the JCC (Judicial Conduct Committee) is a “creature of statute – law” and, as the rule of law forms the basis for our democracy, its ruling must be upheld. However, he has maintained that his stance in support for Israel remains unchanged.

Furthermore, based upon the JCAC’s decision, there are a number of important consequences, which arise not only in terms of the discourse surrounding the Israel-Palestine conflict and the judiciary, but specifically the SAZF’s complaint against Judge Siraj Desai.

The substance of the SAZF’s complaint is that Desai’s relevant comments and actions went well beyond the scope of the ethical conduct required of a judicial officer. That Desai has involved himself in multiple political controversies is indisputable. While doing so, he has exploited his status as a high court judge to promote partisan political causes.

One of the instances of Desai’s clear infringements of the judicial code involved his depiction of the United States (US), one of South Africa’s most important trading partners, in an interview on Iranian state media, as “the great Satan”. This amounted to a clear criticism of South Africa’s foreign policy and of its cordial and mutually beneficial relationship with the US.

Desai has a long history of endorsing and promoting the anti-Israel political lobby. This includes leading an anti-Israel tour to the Gaza Strip with BDS (Boycott, Divestment, Sanctions movement) activists, and participation in BDS activities and events.

The BDS movement is notorious for its zealous anti-Zionism and its fostering of enmity towards the South African Jewish community.

In spite of his long-standing links with advocacy organisations such as BDS, in 2015, Desai presided over a case brought by BDS activists and, regardless of an obvious conflict of interest, failed to recuse himself from hearing that matter.

In 2018, Desai welcomed and supported the Palestinian militant group, Hamas, during its trip to South Africa. This, in spite of the fact that the Hamas charter explicitly calls for violence against Jewish people and the destruction of the state of Israel.

His use of the prestige of the judicial office to promote publicly a highly partisan and controversial anti-Zionist and anti-American campaign is clearly contrary to the precepts underlying the judicial code of conduct.

Given that the JCC found that the former chief justice’s mild utterances regarding peace and dialogue amounted to conduct unbecoming of a judge, we trust that the JCC will find that Desai’s far more fervent promotion of anti-Zionist and anti-American groups, combined with his failure to recuse himself when hearing a case brought by the very group whose cause he so enthusiastically promotes, was in plain contravention of the code.

It will be up to the JCC to uphold consistency on this issue if we aren’t to see a double standard in the way that the judiciary handles public utterances of its judges.

• Benji Shulman is the director of public policy for the South African Zionist Federation.