In a recent webinar held on June 23 and hosted by the Jerusalem Post on global racial tensions that included the Chief Rabbi of South Africa, Warren Goldstein, Chief Justice Mogoeng Mogoeng expressed profound support for the state of Israel, guided by his Christian beliefs and biblical texts.
He confessed his disappointment with the South African government’s position vis-à-vis Israel and its tacit support for the Palestinian side, calling for it to rather promote peace guided by its rich experience of reconciliation.
But, in a remarkable display of judicial overreach, he criticised South Africans and others who condemn Israel over its policies towards Palestinians, yet embrace their former colonisers.
In a mix-up of past and present, he upped the rhetoric in an attack on the Boycott, Divestment and Sanctions (BDS) against Israel movement: “Have we cut diplomatic ties with our colonisers?... Have we disinvested from our former colonisers and those responsible for untold suffering in South Africa and Africa? Did Israel take away our land or the land of Africa? Did Israel take our mineral wealth?”
And with this Helen Zille was immediately outdone as the prominent leader of the exclusive pro-colonial legacy club.
In one fell swoop, our honourable Judge President glibly recognised that the Palestinians are the natives and victims of a modern-day European colonial project that historically involved ongoing land and resource theft, brutal ethnic cleansing, massacres, detention without trial of thousands including hundreds of children, torture and living under Israeli occupation deprived of all basic human rights, with Gaza as an open-air prison regularly bombed by the Israeli regime and peaceful protesters massacred by snipers, causing thousands of civilian deaths.
In recognising the political status of the Palestinians as a colonised people, he is then guided by his religious beliefs and a convoluted perspective of history that calls on us to all support and enable the Israeli regime to continue its colonial genocide, unopposed, because South Africa and other African countries have good relations with their former colonisers.
Most startling is that our Chief Justice does not allow himself to be guided by the highest law of the land, the Constitution and Bill of Rights, let alone international law.
The historical irony is that he seems to be completely oblivious to the global context of the Black Lives Matter movement protesting against the racist murders of black people in the US, and the public discussion and response against the legacy of colonialism and racism in countries all over the world.
For him, the brutal, racist oppression of Palestinians by the Israeli regime is not only acceptable, but should be supported, and Israel forgiven for its colonial genocide of the natives.
But let us remind the learned Judge President of relevant International Law and the actual legal position of the Palestinian people, especially relative to our experience of apartheid.
That Israel/Palestine is an apartheid state is glaringly evident to us as South Africans.
Within “Israel proper”, more than fifty laws discriminate against Palestinian Israeli citizens on the basis of citizenship, land and language. More than 90% of the land is reserved for Jewish occupation only.
That Israel’s conduct towards Palestinians meets the legal criteria of apartheid has also been extensively documented internationally, including by the former Special Rapporteur for Palestine, Professor John Dugard of South Africa. In fact, the recently enacted Nation-State law has made Israeli apartheid not only de facto, but also de jure.
After decades of Israeli military occupation, the so-called “two-state solution” is a non-starter. It has also been made moot by US President Donald Trump’s so-called “deal of the century”, and by Israeli Prime Minister Benjamin Netanyahu’s intentions after July 1 to annex parts of the West Bank (as well as East Jerusalem).
In defiance of the UN and its numerous resolutions, these areas are occupied by an estimated 700 000 Israeli citizens.
Annexation of land is illegal in international law. It is prohibited by Article 2(4) of the UN Charter and the Fourth Geneva Convention.
In addition, the Kellogg-Briand Peace Pact of 1928, that preceded the UN and which prompted Article 2 (4), outlawed both the use of war and annexation of a conquered land. Ironically, the enacting legislation is still valid on the statute books of the US.
As South Africa, we now have a serious dilemma where our Chief Justice implicitly supports a modern-day colonial genocide with complete disregard for the human rights of the native Palestinians.
In concrete terms, what are the implications for our judiciary where the highest official of the land is guided by religion in his political opinions and actions?
How could this possibly not influence crucial cases that land up in the Constitutional Court - many of which relate to the unfinished business of apartheid and colonialism, such as the land question, housing and discrimination?
What are we to expect on other issues relating to the right to life, and abortion, or the death sentence?
More specifically, there are current cases relating to Israel-Palestine in our lower courts such as the Palestine Solidarity Campaign versus the Labia Theatre destined for the Equality Court, and the South African Human Rights Commission and the Jewish Board of Deputies versus Cosatu and Bongani Masuku that could readily end up in the Concourt. Will Chief Justice Mogoeng Mogoeng recuse himself then?
Perhaps the Judicial Services Commission and Public Protector should step in, investigate and act.
* Martin Jansen is the chairperson of the Public Service Commission in Cape Town.
** The views expressed here are not necessarily those of IOL.