Legal organisations have praised the Judicial Conduct Committee (JCC) for its speed in reaching a decision on a complaint against chief justice Mogoeng Mogoeng, saying it was a welcome sign that some legal disciplinary processes work - even in a complaint against the highest judicial office.
Thursday's decision from the JCC was the first of its kind against a chief justice. It directed Mogoeng, within 10 days, to apologise for his comments in June last year about SA's foreign policy towards Israel, finding that he had breached the code of judicial conduct by becoming involved in political controversy or activity.
He was also directed to "unreservedly retract" his subsequent statement: "Even if 50-million people were to march every day for 10 years for me to do so, I would not apologise. If I perish, I perish."
Mogoeng may still appeal against the decision and has a month to do so, in terms of the Judicial Service Commission Act.
His comments were made during a webinar hosted by The Jerusalem Post entitled "Two chiefs, one mission: confronting apartheid of the heart".
The other guest was SA's chief rabbi, Warren Goldstein.
Asked by the Post's editor Yakoov Katz about the sometimes "tense diplomatic relations" between SA and Israel, Mogoeng said that while he considered himself bound by SA's policy positions, as a citizen he was also entitled to his views.
After quoting the Bible, he said "as a Christian" he had to "love and pray for Israel because I know hatred for Israel by me and for my nation will - can only - attract unprecedented curses upon our nation". He said that despite neocolonialism, which was still causing suffering to Africans, SA had not cut ties with or disinvested from its former colonisers, and its position needed reflection.
Mogoeng's remarks caused an outcry and led to three separate complaints to the JCC.
In his decision, judge Phineas Mojapelo of the JCC said: "Judges are to stay out of politics, and are only permitted to pronounce on the legal and constitutional boundaries that may apply to those politics. When called upon to pronounce, they do so on the basis of the constitution and the law, and not on the basis of any preconceived notions - not even religion - however committed to those notions. That is what the constitution and their oaths or affirmation bind them to."
Mogoeng's spokesperson Nathi Mncube would not comment on Friday on how the chief justice would respond.
Legal organisations declined to comment on the merits of the decision, but Craig Watt-Pringle, chair of the General Council of the Bar (GCB), said the GCB welcomed the speed with which the decision was reached. Some complaints, he noted, such as those involving John Hlophe, judge president of the Western Cape, had dragged on for years.
Watt-Pringle said the bar always strongly defended and stood behind the judiciary when it was attacked for its judgments.
Judges spoke through their judgments, which could be corrected on appeal. But they had to be careful not to court controversy and express opinions of a political nature "when this makes them fair game for the criticism from which we would ordinarily seek to protect them", he said.
This is the precise reason why the judiciary should not meddle unduly into what is the constitutional preserve of others
The chair of the Pan-African Bar Association of SA (Pabasa), Nasreen Rajab-Budlender, also commended the speed of the decision. She said Pabasa welcomed the fact that a constitutionally mandated process was functioning "even in respect of the highest judicial office in the country". But she said Pabasa would wait to hear Mogoeng's response before commenting further.
The Law Society of SA said it would study the JCC decision and comment later if necessary.
In his decision, Mojapelo said that the webinar took place on the eve of a UN Security Council video teleconference, at which deputy minister of international relations & co-operation Alvin Botes, condemned threats by Israel to formally annex parts of the West Bank and Jordan Valley. Mojapelo noted that Botes called the Israeli plan a "stark violation of international law".
The judge said it was one thing for a member of the judiciary to criticise SA's foreign policy, but to do so on an international platform at a time when the executive was raising the same issue at the UN "had the potential of undermining and embarrassing the executive in its constitutional function, whether intended or not".
"This is the precise reason why the judiciary should not meddle unduly into what is the constitutional preserve of others."
Mogoeng's statement that he would never apologise was an aggravating factor, said Mojapelo.
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