SAZF complaint about conduct “grossly unfair”, Desai says

Judge Siraj Desai has called for the dismissal of the complaint laid against him by the South African Zionist Federation (SAZF) of being an anti-Israel “politicised judge”.

In June, Professor Anthony Arkin on behalf of the SAZF lodged a complaint with the Judicial Conduct Committee (JCC) of the Judicial Services Committee (JSC) against the highly respected Western Cape High Court judge, accusing him of action and conduct “entirely unbecoming of a judicial officer”.

In his blistering 24-page response, Desai 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’s response, lodged on Tuesday, 31 August, included information about his career as a “prominent human rights lawyer and activist”. He said he subscribed to the principle that “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”.

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

“Secondly, 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, he 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 experiences, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties.”

“True impartiality doesn’t require a judicial officer to have no sympathies or opinions when it comes to violations of human rights, injustices, and inequality. What is required is the ability to adjudicate issues reflecting different points of view and doing so with an open mind.”

The SAZF approached the JCC claiming Desai had breached the JSC Act and code of judicial conduct between 2009 and 2020.

It charged that Desai became involved in political controversy; and used or lent the prestige of judicial office to advance his own private interests, or others. It went on to say that he failed to recuse himself in a matter where there was a possible conflict of interest. It also alleged that he became involved in extra-judicial activities in breach of the impartiality rules, and became involved in activities incompatible with judicial office.

It 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 by President Cyril Ramaphosa as legal services ombudsman, in which his role is to safeguard the integrity of the legal profession.

For many years, Desai, who served as a judge of the Western Cape High Court for 25 years, 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.

SAZF Legal Forum spokesperson Rolene Marks said, “The SAZF believes that Judge Desai has made use of the prestige of his office to cause political controversy and advance his private interests including anti-Israel political movements and support for Iran, Hamas, and BDS.”

She said the judge “must be held accountable” for his behaviour according to the code of judicial conduct.

Acting chairperson of the JCC, Sisi Khampepe, designated Justice Nambitha Dambuza, a member of the JCC, to look into the complaint “to determine its merits”.

Desai’s response went on to outline that he had “appeared as legal counsel in many important and politically significant matters. His clients included community leaders, human-rights activists, several accused in terrorism cases during the apartheid era, and persons dispossessed of their land rights in Cape Town, the Eastern Cape, and in North-West province.”

Said Marks, “The SAZF has received Judge Desai’s response to the JCC, which our legal team is studying. The SAZF will continue to move forward with this issue in order to bring Judge Desai to account for his statements and actions which have politicised the judiciary.”

The complaint relates to matters and events as far back as 12 years ago. “The SAZF doesn’t provide any coherent explanation for why it took it 12 years to lodge this complaint,” said Desai.

“Judge Desai is entitled to hold political views in his capacity as a citizen provided he exercises such rights in a manner consistent with the independence and impartiality of the judiciary as protected by the Constitution,” he said in his response.

Referring to some of the allegations, he said it was “unacceptable” for the SAZF to make broad, sweeping, and generalised allegations of judicial misconduct.

In its conclusion, he said, “The complainants have gone through the judge’s life with a fine tooth comb in an attempt to discredit the judge and curb and curtail the space for human-rights advocacy. This scatter-shot approach is patently unfair, and cannot reasonably and rationally constitute the basis of a valid complaint. Despite all their attempts, they have not been able to make out a valid case against the judge.

“It’s also grossly unfair to confront a retired judge with perceived improper conduct which allegedly occurred during his tenure as a judge and which relates to events that may have occurred more than a decade ago.”

Finally it said, “Ultimately, Professor Arkin and the SAZF seek to protect and conceal human-rights abuses which are apparent in, inter alia, the Goldstone Report. Judge Desai is implacably opposed to human-rights abuses everywhere. There is simply no moral equivalence between a party who seeks to promote and protect human rights and one who violates it.”

It called on the JCC to “make a decision whether it’s proper for a judge to engage in activities to promote human rights and condemn gross abuses where they occur”.

The SAZF was examining the response at the time of going to print. The JCC invited it to comment in writing to Judge Desai’s response by 15 September.