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Publication Date

11-2022

Abstract

This is a judgment against the first judge among his peers: the Chief Justice. Handed down by the Judicial Conduct Committee (JCC) of South Africa’s Judicial Service Commission (JSC), this judgment involves the remarks made in 2020 by Chief Justice Mogoeng Mogoeng at a webinar hosted by a pro-Israel, conservative, Zionist newspaper. During that webinar, Mogoeng criticized the South African government’s official policy on the Israel-Palestine conflict. Following Mogoeng’s faux pas and a loud public outcry, three non-governmental organizations (NGOs) lodged complaints with the JCC against Mogoeng for his Israel comments.

This appeal judgment largely confirms the JCC’s earlier complaint judgment in 2021 that Mogoeng violated its duties under the Code of Judicial Conduct (‘the Code’) and the JSC Act by embroiling himself in a political controversy or activity and by lending the prestige of the judicial office to advance private interests. In a 2-to-1 split decision, the JCC concluded that Mogoeng’s extra-judicial comments on South Africa’s foreign policy in the Middle East infringed the law in a manner that breached the separation of powers as he intruded into the sphere of the executive and Parliament. However, the dissenting judge maintained that the JCC should have upheld Mogoeng’s appeal because the complaints against him took his Israel comments out of their biblical context while downplaying Mogoeng’s constitutional rights to freedom of expression and religion.

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