Chief Justice Mogoeng Mogoeng’s term ends at midnight (Monday 11th October). He became a Constitutional Court judge in 2009 and later nominated for the position of Chief Justice by former President Jacob Zuma in 2011.
When Justice Mogoeng was interviewed for the position of Chief Justice more than ten years ago, one of the critical questions he faced, related to his religious views.
The Judicial Service Commission wanted Justice Mogoeng to explain his statement in which he quoted the Bible in relation to obeying the rule of law.
The JSC Commissioner who asked him at the time was CP Fourie: “I find it odd at best that as motivation for your statement, that you must obey the law of your government, that you refer to the passage and which I have read. If one looks at that passage in isolation and you try and dissect and understand, it says there literally, it appears to be in conflict with your oath of office. And it also appears to me to impact on our independence. And I would like you to comment on that please.”
Mogoeng had to clarify the statement about his religious views in detail to the panel: “Context is critical here, Commissioner. I was coming from a position that criticism has been levelled against me on the basis that because I am a Christian it is very likely that the Constitutional rights of a community such as a gay and lesbian community or gay and lesbian people, which is a right that conflicts with the bible or the provisions of the bible, the likelihood exists, according to the criticism, that I was going to uphold the Bible in total disregard of the Constitutional rights of other people in so far as there is a conflict. Now the point sought to be made broadly speaking is the following: that even the Bible expects a Christian to obey the law. For instance, you may be in any country whether you are in Zimbabwe or where ever, you may even be a ratepayer and there may be an ordinance that says you must pay the rates and taxes, and your attitude might be that I don’t even want to recognise this government, I didn’t even vote them into office, let them go with their own laws. The context is, it doesn’t matter whether that’s a Christian government or not a Christian government as long as there is a law that must be obeyed. You are duty bound to obey that law until such time that it is repealed. As for my government, it was not in any negative sense. I am very much alive to the fact that it was the people of South Africa who made the Constitution. And I was very much alive within the context of the controversy that was already brewing at the time when I made that statement.”
He will not only leave office as Chief Justice but his 12 year non-renewable term as a Constitutional Court Justice also comes to an end.
The outgoing Chief Justice leaves office with an unresolved matter over his religious views in public. This relates to the Pro-Israel comments he made at a Webinar hosted by an Israeli newspaper last year. It led to a complaint laid against him by the South African Boycott Divestment Sanctions Coalition.
The Coalition’s National Co-ordinator is Roshan Dadu says, “In this webinar he clearly contradicted government policy on Palestine by saying that criticising Israel was going against the will of God. The Judicial Service Commission agreed with us and Justice Mojapelo ordered the Chief Justice to issue an unconditional apology for knowingly becoming involved in political controversy which is in contravention of the Judicial Service Act. However, the Chief Justice not only refused to abide by their order. He went on to state in the public in a prayer meeting that he will never retract or apologise even if 50-million people took to the streets. And he then submitted an appeal. The SABDS Coalition made a submission to the appeal that there were no grounds to challenge the detailed report made by Justice Mojapelo.”
The BDS Coalition says its fight with the outgoing Chief Justice over his Pro-Israel comments is not yet over.
Dadu says, “The last we heard was that the appeal was heard in June but that the appeal panel was still considering the matter. It is clear that the decision is being delayed until the Chief Justice’s term has come to an end. However, we say that the matter cannot rest here.”
“How can we allow a Chief Justice of Post-Apartheid South Africa to defend a colonial state that discriminates against the indigenous Palestinian population that occupies its land that bombs and kills civilians in Gaza, forcibly removes people from their homes in Jerusalem, shoots, maims and arrest children in a racist apartheid state? How can we let him get away with it?”
Chief Justice Mogoeng ordered to apologise for pro-Israel comments:
When Mogoeng was facing pressure, Pro-Israel lobby group South African Friends of Israel showed support for the Chief Justice. They still maintain that Justice Mogoeng does not owe an apology for his comments. Director of Public Policy at the Zionist Federation of South Africa and SA Friends of Israel Benji Shulman says they commend Mogoeng for not giving into pressure.
“We wish the outgoing chief justice well as he finishes his 12 year term as the helm of the constitutional court of South Africa. He is someone who refused to buckle to pressure from divisive groups in this country who did not like his comments on impartiality about playing a positive role in South Africa in bringing peace between Israeli and the Palestinians, simply because he did not take an anti-Israel position. He was targetted and vilified for saying that South Africa has a positive role to play and that there should be peace between Israelis and the Palestinians.”
Shulman believes that Mogoeng is criticised because he did not display an Anti-Israel stance.
“Well, it goes without saying that if he had taken an Anti-Israel position, then all these groups that make so much noise would be absolutely silent and their silence would be deafening. But because he has promoted peace and dialogue and communication, he was targetted. So, we are very glad that he refused to buckle to this pressure that he refuse to apologise and that he can leave his term with integrity and with impartiality and with judiciousness. And we thank him for upholding the values of the Constitution and we wish him well in his endeavours in the future.”
A Constitutional Law expert Pierre De Vos says Mogoeng’s legacy as Chief Justice will be clouded by some of his controversial religious views in public.
“When Justice Mogoeng was appointed as Chief Justice there were many critics of the appointment who claimed that the Chief Justice was going to lack independence and does not have a strong judicial skills and largely the Chief Justice proved the critics wrong, – showing independence, strong leadership and the like. Unfortunately, the Chief Justice also like any other judge is bound by the Code of Judicial Ethics which says if you are a judge you cannot get involved in statements that will be politically controversial, but here is the Chief Justice (who) has unfortunately stretched over the line.”
De Vos says while Mogoeng’s religious views should be recognised, it does not give him the free will not to comply with the Judicial Code of Ethics.
“Making a statement about vaccines and safety of vaccines and secondly, making pro-Israel statements, now these statements were both influenced by the Chief Justice’s strong religious beliefs that must, of course, be recognised. But in terms of the Code of Judicial Conduct your religious views does not give you a free pass not to comply with the Code of Conduct and this is where the Chief Justice went straight over the line.”
Reaction to Chief Justice Mogoeng Mogoeng’s comments on Israel:
It’s unclear whether the JSC will pursue Mogoeng even after retirement if his appeal is dismissed. We leave you with this statement by the Chief Justice which was broadcast in March this year, where he justified why he will not apologise for his Pro-Israel comments.
“I will not reject my God. I will not apologise for believing in my God. I will not apologise for being a Christian. I will not apologise for prayer. I will not apologise for holding up the word of God. I will never, even if 50-million people can march everyday for the next ten years, for me to retract or to apologise for what I said I will not do it. I will never say I hate anybody or any Nation. I will never. There will therefore be no retractions. There is nothing to retract. There will be no apology. Not even this political apology that in case I have offended anybody, without meaning to offend them for that reason….I will not apologise for anything. There is nothing to apologise for. There is nothing to retract. I can’t apologise for loving. I can’t apologise for not harbouring hatred and bitterness. I will not. If I perish, I perish.”
SABC takes a look at outgoing Chief Justice Mogoeng Mogoeng’s career: