JUDICIARY IN CRISIS

‘The Lord gave me the grounds for appeal’: Chief Justice Mogoeng rejects Judicial Conduct Committee finding

By Des Erasmus 15 March 2021

Chief Justice Mogoeng Mogoeng. (Photos: Gallo Images / Alet Pretorius)

Mogoeng Mogoeng had been ordered to apologise and retract comments he made about SA’s relationship with Israel. He was supplied with a scripted version of what he should say. But he doubled down at a public prayer meeting on Sunday night, saying he had nothing to apologise for.

Des Erasmus

Chief Justice Mogoeng Mogoeng said on Sunday night that God had given him “rock-solid grounds” to appeal the findings of the Judicial Conduct Committee (JCC) regarding remarks he made in June 2020 during a Jerusalem Post webinar about South Africa’s relationship with Israel. 

Mogoeng also took the opportunity to call the JCC decision, adjudicated by retired Deputy Judge President Phineas Mojapelo, “narrow-minded, flawed and superficial”. 

And he opened up about what he called “plots to kill me”. 

“I respect the law. I will not defy the law. But if it does come to the point where I am forced to do the abominable, or I am forced to reject God, then I would rather be without money, be without any position. I will never refuse to obey the Lord. 

“If I get to the point where there is a judgment that says, ‘You must say you hate Israel and the Jews’, I would rather cease to be Chief Justice. If I get to the point where they say, ‘Mogoeng, you must say you hate the Palestinians and Palestine’, I would rather cease to be Chief Justice than to do it, because my God has instructed me to love and not to hate. I hate evil deeds, I don’t hate anybody.”  

The Chief Justice’s unscripted comments were made during a “Thanksgiving” Zoom session that started at 6pm on Sunday on the Hope, Healing and Restoration prayer platform, formed by Mogoeng at the time of South Africa’s coronavirus lockdown. The Chief Justice and his wife, Mmaphefo, were described as devoted “prayer warriors” of the group. 

Earlier on Sunday, the secretariat of the JCC announced Mogoeng’s decision to appeal its ruling. The ruling came about after complaints were lodged by Africa4Palestine, the SABDS Coalition and the Women’s Cultural Group. 

Mogoeng had been ordered to apologise and retract his comments because he had involved himself in “political controversy”, according to the JCC. He was supplied with a scripted version of what he should say. But he doubled down at a public prayer meeting at a hospital, saying he had nothing to apologise for.

Mogoeng – who has come under severe criticism in the past for not subduing his Christian beliefs – said that before he had finished reading the JCC decision, “the Lord gave me the grounds for appeal”. 

“The Lord gave me rock-solid grounds to appeal even the most unusual remedial action (the scripted apology), as if I am a primary school child who can’t read for meaning. That is the most unusual thing I have ever seen. It’s almost as if it was designed to trash you, to reduce you to nothing, to put you in your place. So I am going to appeal that for the sake of the judges and the magistrates who will find life impossible if they were to be subjected to this kind of thing.” 

Explaining how events unfolded to the 285 or so people who had logged in to the Thanksgiving service, Mogoeng said: 

“I was found guilty of four counts of misconduct. And the question is, why? It is because under instruction of the Lord I accepted an invitation from the chief Rabbi of South Africa to share a platform with him on a Jerusalem Post webinar in June 2020…. 

“The essence of the message [during that webinar] was: If you curse Israel, you will attract the curse,  according to my understanding of Genesis 12, verses one to four (that God will bless those who bless Israel, and curse those who curse Israel). As a child of God, I am obliged to pray for the peace of Jerusalem. And I love everybody, I love Israel, I love Israelis, I love the Palestinians, I love Palestine.” 

Mogoeng had also expressed his “love” for the Palestinian state and Israel and their citizens during the Jerusalem Post webinar. 

He told Sunday’s online viewers that he had been accused of siding against the South African government and “siding with a foreign power”. 

“I was said to be hateful, all manner of things were said.” 

Mogoeng explained the four counts he had been found guilty of by the JCC as such: “That I got myself involved in a political controversy; that I breached separation of powers; that I lent the prestige of my office to advance my interests and the interests of the Jerusalem Post and the Israeli government; and that I got myself involved in unacceptable extrajudicial activities irreconcilable with the judicial office. 

“And it was said that what makes it worse is that I seem to have connived with the Israeli government to make sure that we time the Jerusalem Post webinar in such a way as to embarrass the government of South Africa, because the next day, unbeknown to me, they were going to make a presentation at the United Nations Security Council. 

“But it is also said that I sort of condoned and encouraged the Israeli government to break international law, to undermine UN Security Council resolutions [regarding Israel’s treatment of Palestinians and their property].” 

Mogoeng said the finding of guilt hinged on his alleged “attack, criticism and undermining of the official government policy of South Africa towards Israel”, but that no such policy existed. 

“When policy is made, it can only be made in terms of 85 (2) b of the Constitution, together with section 101, subsections one and two of the Constitution. There must be a document signed by the president and the minister responsible for that portfolio…. There is no policy on South Africa towards Israel that contradicts anything that I have said.

“Any suggestion that I am guilty of any provision that talks about appointment when I did not accept any appointment, is flawed. That provision is about ensuring that while you are a judge, you can’t become a mayor, you can’t become a premier, you can’t become a minister, you can’t become a member of Parliament because you will then be exercising executive authority, or legislative authority in that capacity…” 

During the Jerusalem Post webinar, Mogoeng had prefaced an answer to editor-in-chief Yaakov Katz’s question about improved relations between South Africa and Israel by saying: 

“Let me begin by saying that I acknowledge, without any equivocation, that the policy direction taken by my country, South Africa, is binding on me. It is as binding as any other law would bind on me. So whatever I have to say should not be misunderstood as an attempt to say the policy direction taken by my country in terms of their constitutional responsibilities is not binding on me. 

“But, just as a citizen, any citizen is entitled to criticise even the Constitution of South Africa, is entitled to criticise even the laws and the policies of South Africa, or even suggest that changes are necessary. And that’s where I come from.

So I am under an obligation as a Christian to love Israel, to pray for the peace of Jerusalem, which actually means the peace of Israel, and I cannot as a Christian do anything other than love and pray for Israel, because I know hatred for Israel by me and my nation, can only attract unprecedented curses upon our nation.

“Let me give the base. The first base I give is Psalm 122, verse six, which says: ‘Pray for the peace of Jerusalem. They shall prosper that love me’. And also Genesis 12, verses one to three. That says to me, as a Christian, that if I curse Abraham and Israel, God, the almighty God, will curse me too. 

“So I am under an obligation as a Christian to love Israel, to pray for the peace of Jerusalem, which actually means the peace of Israel, and I cannot as a Christian do anything other than love and pray for Israel, because I know hatred for Israel by me and my nation, can only attract unprecedented curses upon our nation. 

“So what do I think should happen? I think that as a citizen of this country, that we are denying ourselves a wonderful opportunity of being game-changers in the Israeli/Palestinian situation. 

“We [South Africa] know what it means 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 South Africa 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. 

“Let me recite, for example, another example in regards to the Israeli/South African situation: Remember, the overwhelming majority of South Africans of African descent are landless. They don’t have land. Why? Because the colonialists came and took away the land that belonged to them. 

“The colonialists came and took the wealth that belonged to them. And that has never stopped. Today, in South Africa and in Africa, people are landless and some are wallowing in poverty and yet South Africa and the whole of the continent of Africa is rich in fertile soil, rich with water, rich with mineral deposits. Have we cut diplomatic ties with our previous colonisers? 

“Have we embarked on a disinvestment campaign against those who are responsible for untold suffering in South Africa and the continent of Africa? Did Israel take away our land? Did Israel take away the land of our people? Did Israel take away the mineral wealth of South Africa and Africa? 

“Because we have got to move from a position of principle, we have got to have a broader perspective and say: ‘We know what it means to suffer and to be made to suffer, but we have always had the spirit of generosity, the spirit of forgiveness, the spirit of building bridges.’ And together with those who did us harm, coming together and saying: ‘Well, we can’t forget what happened, but we stuck together.’

“Our history forces us to come together and to look for how best to coexist in a mutually beneficial way…. Now, there is neo-colonialism, we know, it is an open secret, why South Africans and Africans are suffering. What about diplomatic ties? What about disinvestment? What about strong campaigns?” 

Turning to Judge Mojapelo on Sunday night, Mogoeng said that the decision in his own matter was “very dangerous”. 

“Contrary to my brother Mojapelo’s logic, judges are citizens, and have constitutional rights of freedom of expression, freedom of religion, freedom of thought and freedom of opinion. It is not correct to say that as soon as you assume office, you automatically let go of your constitutional rights. Where is that written? What authority is he basing his decision on?” 

Mogoeng said that a president also had a right to criticise a court judgment, like any other citizen, if he or she believed the judgment was wrong. 

“I have been saying to politicians and members of the public for years: ‘You have a right to criticise, but please, tell us where we have gone wrong, don’t just generalise.’ The only thing that the president, like any other citizen, is not entitled to do in relation to a court judgment is to refuse to comply with it.” 

Returning to Mojapelo saying Mogoeng had used the Jerusalem Post webinar to advance his own interests, those of the publication, and of the Israeli government, the chief justice said it was again “very dangerous”. 

“Because it means every time a judge or magistrate accepts an invitation by SABC or eNCA or Newzroom Afrika, they are advancing their own interests and or the interests of that station so that it can have a large viewership, and the judges must be punished for it.” 

The same could apply to judges agreeing to be covered in newspapers, magazines, on radio or speaking at a conference, he added. A judge could then not be a chancellor or council member of a university, he said. 

“That is narrow-minded, it is flawed and superficial reasoning.” 

Mogoeng said that during a speech that President Cyril Ramaphosa gave in 2018 to the Jewish community in South Africa on the occasion of Rosh Hashanah, he called for peace and a peaceful resolution to the situation in the Middle East. 

“Is that not what I called for? Peace and mutually beneficial coexistence? You will never find anything that contradicts what I said, said by the president. Nothing official, nothing.” 

He said there were those around the world who had “mastered the art of intimidation” who had intolerance as their “trademark”. 

“The mischief-makers can charge me with treason, they can charge me with all manner of things. Do you think I care? [God’s] law has never failed me. I am not saying things in order to be popular, I am not saying things to enjoy media coverage, I don’t need media coverage. Anyone who pays close attention to me will realise that I don’t even easily allow the media to cover what I am saying. I don’t need them. 

“Why must I be worried about the media? What do I want publicity for? For people to know me? Don’t they know me? And after they know me, what are they going to do about it?” 

Mogoeng said he knew of “many attempts to kill me”. 

“The Lord has cancelled those attempts. There was a recent one this year – a plot to kill me. The Lord revealed it. Anybody from today, who is plotting to disgrace me, they will die before they can even do it, in the name of Jesus.” DM

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  • Well said Sir and thank you for the perspective!
    The proof of independence of the judiciary rests on the finding made regarding your appeal

  • It’s incredible that you still persist with this ridiculous notion that you are just an ordinary citizen. You are not. But three of the four remaining justices serving in the JCS, including Deputy Chief Justice, will soon hear your appeal and make a final decision.

  • I totally agree. The ruling by Phineas Mojapelo was totally biased and unjust. The Chief Justice is surely entitled to express Christian love as we all are. Thank you, Sir, for your brave stand – I pray that you succeed

  • I so agree with the position you are taking, being one of principle, and to some extent restoring my hope for an independent and unbiased judiciary.
    I wish you all the best in your appeal and let’s hope there are also principled people on the bench deciding it.

  • The hearing was in the nature of a disciplinary hearing where consistency is required.Note Judge Desai said “the Israeli occupation of Palestine was one of the longest continuing breaches of human rights in the world” and was stopped by Egyptian security forces while planning to march to Gaza.

  • He says “I respect the law. I will not defy the law.” Then he goes on to say: “I will never refuse to obey the Lord.” This brings me to the question: What would he do if he was told by God to sacrifice his own son like God commanded Abraham to do?

  • Much more than Mogoeng’s “controversial” views on the Israel/Palestine situation, it should be of grave concern to everyone that it is apparently impossible for people in prominent positions of authority to muster the necessary discretion for keeping their religion in their proverbial pants.

  • He denies there is a SA government “policy” towards Israel but then speaks about “the policy direction” of the SA government? Quite bizarre. He seems incapable of understanding that this is about his position as CJ, not whether he personally supports the state of Israel.

  • Please, Sir, don’t mess up your admirable legacy like this. Israel just played you. End your term on a high note (deal with the Hlophe matters). Stop digging this hole. And besides, Israeli Ethiopians also can’t breathe.

  • Please help me here.
    Desai stated Israel “was stopped by Egyptian security forces while planning to march to Gaza.”
    Just as a matter of interest in what parallel universe does he live?
    Be that as it may we do know that Desai has treated the JSC with the contempt it deserves, I am delighted to see that the Chief Justice treat them with as much contempt.

  • I may not be Christian but I admire the spirit of our Chief Justice. He inspires me for his fearlessness in exercising his constitutional right to freedom of expression without needing to either impress or patronize anybody. I personally see nothing wrong with his personal stance on Israel.

    Peace

    • I totally agree with Sandile Zondi. I am a Christian and admire our Chief Justice for his stance. The whole Western world is going in the ‘woke’ direction and without people like him will get there, which will be a tragedy.

  • Justice Mogoeng Mogoeng is a very brave and principled man. He has stood by his beliefs in spite of all the pressure put upon him. This country needs more like him…

  • An excellent example to Christians throughout the world. Thank you Chief Justice. In these times we are called to be courageous in our faith. May we all have your courage as we take a stance against the evil in this world.

  • This is a perfect example of how some people mix up their religious convictions(very frequently based on overly metaphorical language of their religious texts of whatever variety- confused with literalness) with their professional conduct or obligations. A very sad and misguided sense of ‘courage’!

  • Uh oh …. “a plot to kill me” …. when and from whom have we heard that in recent times? Seems to be a very popular tactic these days …..

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