Durban - Legal experts have said Chief Justice Mogoeng Mogoeng should show contrition and apologise for remarks he made about Israel.
The comments come after the Judicial Conduct Committee (JCC) ordered him to unconditionally apologise and retract his pro-Israel views made in June last year. Chief Justice Mogoeng is the first chief justice in the country’s democratic history to be sanctioned for inappropriate conduct.
Experts warned that the committee’s finding had the potential to undermine his legacy and all his good works.
Chief Justice Mogoeng’s tenure is expected to come to an end this year if he is not reappointed by President Cyril Ramaphosa. He was appointed in 2009 by then president Jacob Zuma.
The legal experts said while the chief justice had the right to hold religious views, he should keep them private as it could create the appearance of conflict should a case that touches on religion land before the Constitutional Court.
Last week the committee ordered him to apologise for the remarks he made during a webinar with an Israeli newspaper, The Jerusalem Post.
A ruling handed down by Judge PM Mojapelo, a member of the JCC, ordered that the chief justice apologise within 10 days of the ruling, and also prescribed what the apology should say.
On June 23 last year, Chief Justice Mogoeng participated in a webinar with the Chief Rabbi of South Africa, Rabbi Warren Goldstein, hosted by The Jerusalem Post. The moderator was the editor-in-chief of the newspaper, Yakoov Katz, and the webinar was entitled “Two Chiefs, One Mission: Confronting Apartheid of the Heart”. During the webinar, the moderator asked Chief Justice Mogoeng about his support for Israel.
The chief justice said that he was under an obligation as a Christian to love Israel and pray for Jerusalem’s peace. The comments created a storm and led to complaints being laid with the Judicial Service Commission (JSC).
The JSC referred the matter to the JCC. Africa for Palestine, SA BDS Coalition and Women’s Cultural Group laid the complaints.
Paul Hoffman, of the Institute for Accountability in Southern Africa, said yesterday that it would be a sad day if the most senior judge in the country exited the office at the end of October with this cloud over his head.
“The chief justice could either abide by the directive and apologise as he has been instructed, or he could take the judgment for a review. This complaint will wind its way through the commission and might even end up in court.”
Hoffman expressed concern that the chief justice might choose to double down. “He has taken the moral high ground on issues, and all the good work that he has done will be undermined by this.”
Stanley Malematja, an attorney with the Wits Law School, said if the chief justice apologised, it would show that he was not fixated on the hierarchy in the judiciary as “he is being asked by an institution and judge junior to him to apologise”. He said it was important for the chief justice to take into account his position of authority in society and consider it before he spoke.
He said that while Chief Justice Mogoeng had the right to hold religious views, he should handle them carefully.
“This (speaking out about his religion) could have the consequence of undermining the cases that come before the court. South Africa is a constitutional country and all religions have equal rights.
“If, for instance, a case that touched on the Muslim religion rights versus those of Christianity came before the court and he had to preside over that case, there could be a view that the outcome of that case was already predetermined because the chief justice is so vocal about his Christianity.
“The chief justice needs to realise that he is the chief justice of the country, his position comes with influence and we all know that people trust the messenger before they scrutinise the message,” he said.
Emeritus professor at UKZN George Devenish said it was difficult to speak on the impact this finding would have on the chief justice’s legacy.
“My view is that judges should not express their religious or political views in public because it could happen that a case could come before them with a litigant from another religion and then the judge is in a quandary,” he said.
Nathi Mncube, the chief justice’s spokesperson, did not respond to requests for comment.
The Mercury