South Africa

JUDICIARY

‘Judges should not be muzzled’: Chief Justice responds to complaint on comments about Israel

Chief Justice Mogoeng Mogoeng. Lawyers we spoke to blamed the problems at the Pretoria High Court on the Office of the Chief Justice. (Photo: EPA-EFE / Mike Hutchings / Pool)

Judges are citizens with fundamental rights and freedoms and should not be ‘needlessly censored, gagged or muzzled’, Chief Justice Mogoeng Mogoeng has said in response to a complaint to the Judicial Service Commission by Africa4Palestine.

South Africa, Chief Justice Mogoeng Mogoeng said, was a “free country – not a sophisticated dictatorship” where judges were confined to judgment-writing responsibilities “as some, either out of sheer ignorance, mischief-making or stone-age conservatism, have consistently advocated for.”

Africa4Palestine lodged a complaint with the Judicial Service Commission (JSC) after Mogoeng featured alongside Chief Rabbi Warren Goldstein in a webinar hosted by the Jerusalem Post

The organisation accused the chief justice of disregarding international law “in his support for Israel”. It also noted “with concern” that a hate speech complaint was currently before the Constitutional Court between Cosatu and the SA Jewish Board of Deputies.

Mogoeng said that parts of his statement had been “tactfully or strategically left out” and that he would attempt to contextualise his views as expressed during the webinar. He said the first quote had been taken from the Bible, Matthew 5:44 and had been about “love and advance-forgiveness”. The CJ said his full quote was:

“I love Jews, I love Israel, I love Palestine. I love the Palestinians. I love everybody. One, because it is a commandment from the God in whom I believe, but also when you love, when you pursue peace with all human beings, you allow yourself the opportunity to be a critical role player whenever there is a dispute.”

He said that his quotes from Psalms and Genesis about an obligation to “love Israel and to pray for the peace of Jerusalem” were uttered in the context of seeking to play a role in the Israeli-Palestinian conflict.

“I think as a citizen of this great country, that we are denying ourselves a wonderful opportunity of being a game changer in the Israeli-Palestinian situation,” he said he had said during the webinar.

South Africans, he said, knew what it meant “to be at loggerheads; to be a nation at war with itself. And therefore the forgiveness that was demonstrated, the understanding, the big heart that was displayed by President Nelson Mandela, and we the people of SA following his leadership, is an asset that we must use around the world to bring about peace where there is no peace, to mediate effectively based on our rich experience.”

Africa4Palestine had viewed his conduct as a Christian who accepted Biblical principles “as conduct that must be condemned and punished – conduct that must not be allowed in South Africa”.

Judges, Mogoeng said, “ought to be free to continue to write articles or books, deliver public lectures, to participate in radio or television programmes to share reflections on human rights, constitutionalism, policies or any other subject of public interest”.

Africa4Palestine had, in the CJ’s view, found a way to “build a case by taking these remarks completely out of their obvious context to achieve its goal of making an example of me to any who would ever dare to knowingly or unknowingly differ with them”.

Mogoeng described himself, in his reply to the JSC, as “a Christian who believes in the Bible in its totality”.

“Embracing, professing and ordering one’s affairs in line with the Holy Bible is a fundamental human right entrenched in the supreme law of the republic – the Constitution,” he added.

Response by CJ Mogoeng – Africa for Palestine

The free expression of opinion, belief or thought were “doubly guaranteed by sections 15 and 16 of the Constitution.”

“These freedoms are therefore not to be lightly interfered with just because their exercise or enjoyment irritates or is at variance with the agendas or popularised views of some.”

The exercise of these freedoms was also not to be “overly controversialised or weaponised to beat some citizens into line or force them to conform to the viewpoints of others like pressure groups, the media, analysts or government”.

No one, he added should “thus be allowed to easily get away with campaigning or enforcing their project/agenda/world-outlook, which unconstitutionally negates constitutional rights of others, into the national psyche so as to prime all, including would-be decision makers, into a fear-induced acceptance of a popularised line of command to escape untold reputational damage or other conceivable risks that could otherwise eventuate.”

While everyone had the right to “criticise or wish Bible-based Christianity and aspects of the Holy Bible they don’t like out of existence”, no one “had the right to unduly controversialise, smear or systematically work the Bible and Christianity out of their constitutionally-ordained existence under the guise of advancing unspecified human rights or constitutional values”.

The idea that any thought “grounded on the Holy Bible amounts to ‘expressions of support for and solidarity with Zionism and Zionists’ and an anti-Palestine disposition, which ought inexorably to have resulted in my recusal from the Masuku case, is most concerning when put in its proper context.”

The strong views that judicial officers held on human rights, constitutional or any issue had to be made known to the public, said Mogoeng.

“This way, the public would be able to assess our judgments with reference to our known views or dispositions, be it to religion, sexual orientation, gender-based issues, femicide, landlessness, homelessness, poverty, peace, forgiveness or other issues.”

He said the request for him to recuse himself from the hate-speech matter before the court was a “red herring.”

“It has got nothing to do with what I said. It is about hate speech. Mine was a love, forgiveness and peace speech.”

Mogoeng said there was no merit in the allegations levelled against him and that he stood by what he said in an April 2016 JSC interview of advocate Michael Donen SC.

Interviews for judgeship were about “testing suitability for appointment on the basis of the candidate’s knowledge and understanding of the law and its practical application.”

He said he stood by his assertion that views on “the demand for the existence of an independent state of Palestine are political and highly sensitive”. He denied ever expressing any view on this demand. 

Africa4Palestine, he said, believed that his belief in the Bible “as a whole and devotion to my Christian faith undermines my impartiality or independence or informed public confidence”.

“Unfortunately, it is not within the province of any judge to prevent self-inflicted and self-serving motions of no confidence from being expressed all over the public domain.”

In his conclusion, Mogoeng said that “a desperation to enforce own or sectional agendas, by singling out a public figure to make an example of him or her, almost as if to say to all, ‘you better watch out’ ” should be guarded against.

It could, he said, never be “scandalous or unbecoming of a judicial officer to believe the Biblical commandment to pray for the peace of Jerusalem, to enhance love for all rather than hatred, peace rather than war, the possibility for mediation rather than self-exclusion.” DM

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