Judge Siraj Desai appeals ruling on his denouncement of apartheid Israel

Retired Judge Siraj Desai has been at the forefront of the fight for human rights since before he began his 50-year legal career. Picture: Ayanda Ndamane / African News Agency (ANA)

Retired Judge Siraj Desai has been at the forefront of the fight for human rights since before he began his 50-year legal career. Picture: Ayanda Ndamane / African News Agency (ANA)

Published Jul 19, 2023


Retired High Court Judge Siraj Desai has lodged an appeal against the the ruling against him that censured him for speaking out against Israel’s apartheid acts against Palestine.

In June, Judge Desai told IOL the actions he had taken in support of campaigns against Israel’s apartheid practices against Palestinians were not political, but were carried out in defence of human rights.

This was in a response to complaint lodged by the South African Zionist Federation with the Judicial Conduct Committee in June 2021.

The complaint was that Judge Desai had conducted himself in a manner unbecoming of a judge in that he had made political statements. Seventeen months after the complaint was lodged, Judge Nambitha Dambuza “warned [Judge Desai] not to participate or become involved in any political controversy or any activity in the future, unless it is necessary to do so for the discharge of judicial duties”.

Judge Desai has lodged an appeal challenging Judge Dambuza’s findings.

All but one of the eight charges of misconduct were dismissed by Judge Dambuza. The complaint upheld related to Judge Desai singing a statement in June 2020 condemning Israel’s practice of apartheid, and the planned annexation of parts of occupied West Bank.

The appeal has been lodged on the basis that the statements made were not controversial, not political, and there had been no finding wilfulness or gross negligence on the part of Judge Desai.

The statement is neither controversial nor political

The appeal, which IOL has seen, contends the statement signed by Judge Desai was not controversial, because “apartheid is an international crime against humanity,” and there is evidence to support the claims against Israel carrying out apartheid acts against Palestine.

“It is also not controversial that Israel is perpetrating apartheid against Palestinian people,” the appeal, dated July 7, reads.

The appeal cites International Convention on the Elimination of All Forms of Racial Discrimination, adopted by the United Nations (UN) General Assembly in 1965; The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted by the UN General Assembly in 1968, which included apartheid alongside genocide in the list of international crimes against humanity; The International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention), adopted by the UN General Assembly in 1973; The Rome Statute of the International Criminal Court (ICC) criminalising apartheid as a crime against humanity; and The Constitutional Court of South Africa repeatedly describing apartheid as a crime against humanity.

Supporting the claim that Israel is perpetrating apartheid, the appeal cites numerous instances where high-level reports, complaints, and articles questioned Israel’s behaviour in its annexation of parts of Palestine, and the evidence of apartheid practices.

The appeal contends that apartheid and annexation are legal issues, and not “controversial” or “political” issues as stipulated in Judge Dambuza’s finding.

The document concludes that if the Appeal Tribunal were to dismiss the appeal, it “must declare clearly for all judges that they may never publicly condemn the practice of apartheid or other international crimes – that they may never engage in extrajudicial activities to promote the realisation, and condemn the violation, of fundamental human rights”.