SAZF takes on Judge Desai for his conduct

The South African Zionist Federation (SAZF) has predictably come in for some heavy criticism by the anti-Israel lobby for lodging a complaint against retired Judge Siraj Desai with the Judicial Conduct Committee (JCC).

Last week, the SAZF lodged a complaint with the JCC against the judge, who recently took up the position of the Legal Services Ombudsman.

The SAZF said Desai’s actions and conduct over many years was plainly in breach of the code of judicial conduct and “entirely unbecoming of a judicial officer”.

This was a bombshell complaint against Desai, who is a well-known social activist and respected jurist described by many as the “people’s judge”.

The detailed complaint against him spans many years from 2009 till the present, highlighting Desai’s actions and conduct connecting him to the Boycott, Divestment, Sanctions (BDS) movement against Israel, and the pro-Palestinian movement.

The SAZF said that Desai’s alleged misconduct included his involvement in political controversy, misusing the prestige of his judicial office to advance his personal political interests, failing to recuse himself in a case in which he was obviously conflicted, and involving himself in activities that used the position of his judicial office to promote a partisan political cause.

Desai, who served the legal profession for 43 years, retired as a Western Cape High Court judge last year, and almost immediately accepted the ombud position having been appointed by President Cyril Ramaphosa. The objective of the ombud is to advance and safeguard the integrity of the legal profession in South Africa But more importantly, it’s to ensure fair, efficient, and effective investigation of complaints of alleged misconduct by legal practitioners.

Former Judge Rex van Schalkwyk of the Rule of Law Project told the SA Jewish Report, “This isn’t about whether one is pro-Israel or pro-Palestine. Did Judge Desai conform with the ethics that constrain him as a judge? Having looked at the complaint, there is at least a case that needs to be answered. Judge Desai must give an explanation about his conduct. It’s legitimate for this issue to have been brought to the professional body of the JSC [Judicial Service Commission] and to be dealt with specifically in accordance with the principle of law not in accordance with the political issues which will cloud the complaint.”

The SAZF has been lambasted for the complaint, which it lodged on 10 June, by members of Africa4Palestine and the South African BDS Coalition. They have set up a Facebook page called “Hands off Judge Desai”.

The anti-Israel lobbyists described the complaint as “spurious” and “baseless”, and called it a “vengeful attack”. Africa4Palestine criticised the “questionable” timing of the complaint, saying that it was an attempt to distract from its complaint lodged against the country’s outgoing Chief Justice Mogoeng Mogoeng.

Last Friday, 11 June, the JCC appeal panel said it was continuing its deliberations on Mogoeng Mogoeng’s appeal against a misconduct finding for his remarks about Israel brought by Africa4Palestine.

Earlier this year, the JCC found that Mogoeng had contravened the code of judicial conduct with comments made during a webinar in June last year and subsequently at a prayer meeting where he declared that he would never apologise for the views he expressed. In the webinar, hosted by the Jerusalem Post, he said he believed South Africa would do well to consider adopting a more objective stance on the Israeli-Palestinian conflict and said “hatred” of the Jewish state could “attract unprecedented curses upon our nation”.

In his March ruling, Judge Phineas Mojapelo stressed that “judges are to stay out of politics”.

The South African BDS Coalition said the SAZF’s complaint against Desai was in “retaliation for the failure to secure a seat at the Constitutional Court by Judge Unterhalter” accusing him of being an “apologist for Zionism”. Earlier this year, the SA BDS Coalition demanded that Unterhalter not be selected to the Constitutional Court for his association with the South African Jewish Board of Deputies.

Rolene Marks, SAZF’s legal forum spokesperson said, “At issue here, is the role that judges play in our society. The reason that there is a judicial code of conduct is that judges need to be seen not to be promoting political causes since they may have to rule on them at some stage. However, it’s clear through his comments that although Judge Desai is entitled to his views in terms of freedom of speech, he is bound by the judicial code of conduct, and his actions fall outside of that.”

According to the SAZF, last year, Desai while being interviewed on an Iranian YouTube channel, made “inappropriate comments” likening Iranian leader Ayatollah Khomeini to President Nelson Mandela.

“To compare a world-renowned peacemaker like President Mandela to the despotic founding leader of a regime notorious for its disregard of human rights, and which is responsible for gross human rights violations, including torture and violence against thousands of people, is an insult to the people of South Africa, the Constitution, and our democratic institutions,” the statement said.

It added that Desai also made “several other shocking remarks” during the interview regarding foreign policy, including referring to the United States – an important trading and diplomatic partner of South Africa – as the “great Satan” which demonstrated that Desai had “engaged in conduct incompatible with his status as a judge of the high court.”

According to the SAZF, Desai has a long history of endorsing and promoting the anti-Israel political lobby.

In 2009, Desai was part of a South African delegation of pro-Palestinian activists that was to take part in a protest known as “the Gaza Freedom March” organised by the Palestine Solidarity Alliance. It was during this time that the Cairo Declaration was signed which was a call for a global movement for Palestinian rights and a boycott of Israel. The SAZF said Desai “lent his stature as a judge to the drafting and issuing of the declaration”.

In 2015, he gave an order in a review application brought by pro-Palestinian, anti-Zionist organisations and activists against the City of Cape Town. There is allegedly no record in the judgment of him having disclosed his interest in BDS to the parties in that case, according to the complaint.

In 2018, Desai welcomed Hamas during its visit to South Africa and said, “We hope to make an intellectual contribution to the resolution of the Palestinian issue, but we take our leadership from you, you are the leadership on the ground.”

“This, despite the fact that the Hamas charter includes direct calls for violence against Jewish people and the destruction of the state of Israel. Using the prestige of the judicial office to publicly promote an extremist organisation is clearly contrary to the precepts underlying the judicial code of conduct,” said the complaint.

“Judge Desai has long conducted himself well outside the realms of the judicial code,” said the SAZF. “It’s therefore crucial for maintaining public confidence in the judiciary that manifest judicial misconduct is called to account.”

Desai told News24 through his spokesperson, Professor Usuf Chikte, that he was “unapologetic in his stance in condemnation of apartheid Israel”.