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- Mogoeng Mogoeng is appealing the JCC ruling that he retracts comments he made about Israel.
- The JCC found that Mogoeng’s comments violate the Code of Judicial Conduct.
- Mogoeng argued that his constitutional rights trump the code.
Chief Justice Mogoeng Mogoeng has firmly held fast to the constitutional rights of freedom of religion and freedom of expression when appealing the Judicial Conduct Committee (JCC) ruling.
The JCC had ordered that he apologize and retract comments he made about Israel during a webinar.
In June last year, Mogoeng participated in a webinar organized by an Israeli newspaper, The Jerusalem Post, under the topic: Two bosses, one mission: to confront apartheid of the heart.
News24 previously reported that Mogoeng was asked about his previous statements, regarding his “love for the Jewish people, for Israel, for the state of Israel.”
READ | Chief Justice Mogoeng ordered a retraction of Israel’s comments
Comments on Israel
“… So what I have to say should not be misinterpreted as an attempt to say that the political direction taken by my country in terms of its constitutional responsibilities is not binding on me. But, like a citizen, any citizen has Right to criticize the laws and policies of South Africa or even suggest that changes are necessary, and that’s where I come from, “Mogoeng replied.
“The first basis I give is in Psalm 122, verse 6, which says’Pray for the peace of Jerusalem. Those who love you will prosper. ‘ And see also Genesis 12, verses 1-3, which tells me, as a Christian, if I curse Abraham and Israel, God, the Almighty God, will also curse me.
“So, I have 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 but love and pray for Israel because I know that hatred of Israel, for me and for my nation, can only bring unprecedented curses on our nation.
“So what do you think should happen? I think that, as a citizen of this great country, we are denying ourselves a wonderful opportunity to change the rules of the game in the Israeli-Palestinian situation.”
JCC failure
The JCC investigated these comments, after a complaint was filed against Mogoeng.
The Chief Justice was accused of engaging in a political controversy regarding South Africa’s policy towards Israel, criticizing the official position of the state and putting forward his own views.
READ | Chief Justice Mogoeng to Appeal Decision to Apologize for Israel’s Comments
Judge Phineas Mojapelo ordered Mogoeng to apologize and retract his comments after finding that the Chief Justice had been involved in a political controversy and had violated the Code of Judicial Conduct.
Appeal
But, in his appeal documents, Mogoeng responded to Mojapelo, calling his reasoning behind the ruling “flawed and disturbingly superficial.”
“Your Honor, Judge Mojapelo, was wrong in a material aspect when he found that these complaints do not refer, which means that they do not imply, the constitutional rights to freedom of religion, belief, thought, opinion and freedom of expression”, Mogoeng said.
“The learned judge, therefore, did not address the constitutional right to freedom of expression and freedom of religion, belief, thought and opinion.”
Mogoeng argued that Mojapelo had not interpreted the Code of Judicial Conduct in a way that supports and promotes the right to freedom of expression and freedom of religion.
He added that the Constitution has supremacy over the code.
READ | Chief Justice Mogoeng Refuses To Apologize For Israel’s Comments: ‘There Will Be No Retraction’
Mogoeng also criticized Mojapelo’s conclusion that he was guilty of participating in a political controversy, on the grounds that he criticized and proposed changes in the official South African government policy towards Israel.
“This constitutes material misdirection because the South African government has no official policy towards Israel that disagrees with any of the statements I made in the Jerusalem Post webinar.”
Mogoeng struck Mojapelo again, pointing to the hypocrisy in the ruling that his participation in the webinar amounted to engaging in extrajudicial activity. He said Mojapelo had once written an article himself criticizing the president’s exercise of his constitutional powers to nominate and appoint a president of the Supreme Court.
Mogoeng argued that based on Mojapelo’s reasoning, he should also be found guilty of the same charges as Mogoeng.
However, Mogoeng said that this should not be the case as Mojapelo was exercising his freedom of expression, adding that judges should be able to express their views on politics.
Mogoeng seemed to be referring to an article Mojapelo wrote in Defender in 2013, entitled “The doctrine of the separation of powers.”
In the conclusion, Mojapelo affirms: “The extraction of conclusions on the subject presented is a topic of discussion. This is nothing more than a perspective, a proposal or a contribution to the search for conclusions.”
