Chief Justice Mogoeng Mogoeng, who is no stranger to controversy, has raised the ire of the African National Congress (ANC), among others, with the ruling party calling on the Speaker of Parliament to censure Mogoeng over his expression of support for Israel in a webinar hosted late last month by The Jerusalem Post.

During the live webinar, in which South Africa’s Chief Rabbi Warren Goldstein also participated, Mogoeng lamented South Africa’s adoption of a ‘lopsided attitude toward the Israel-Palestinian conflict’ and said that it would have greater influence if it displayed a more balanced approach.

Mogoeng said South Africa’s history of forgiveness and understanding should have informed its approach to peace-making. The IRR believes that this is the appropriate position to adopt. Not so much, however, his comment that, as a practising Christian, he believed that those who cursed Israel would themselves be cursed.

Mogoeng emphasised that the government’s policy was binding upon him and that he was not seeking to reject it.

As a citizen, however, he was entitled to criticise laws and policies, and suggest changes.

‘As a citizen of our great country, we are denying ourselves a wonderful opportunity of being a game-changer in the Israeli-Palestinian situation,’ said Mogoeng.

The ANC said that Mogoeng had entered the arena of political commentary and could now be vulnerable in adjudicating matters relating to human rights.

This is not the first time Mogoeng has made a controversial foray into the political domain. We believe, however, that not only is it the least controversial of all Mogoeng’s forays into controversial matters, but it’s one that illuminates the ANC’s hypocrisy regarding Israel.

The ANC has always supported the Palestinian cause, as many left-wing political entities and parties do. Members of the organisation’s armed wing, uMkhonto weSizwe, trained with the Palestinian Liberation Organisation and the Irish Republican Army in Libya in the early 1960s.

No regard for complexities

The ANC regards Palestinians as just victims, and Israel as the oppressor. This view shows little to no regard for the complexities or facts of the conflict, and betrays the ANC’s lack of knowledge or understanding of the history of the conflict.

The ANC avers that it supports a ‘two-state’ solution to the conflict, yet it surely can’t, because it very openly supports the Palestinian Authority, Hamas and ‘Boycott, Divestment, Sanctions’. The core goal of these organisations is the destruction of the Jewish state and the establishment of a single, Muslim state. The ANC cannot hold both views at once.

Notwithstanding this view, the government has repeatedly said that it is ready to help mediate between the parties. This cannot be taken seriously, as South Africa cannot expect to have the standing to act as mediator when it shows so much animus towards Israel that it permanently withdrew its ambassador in 2019.

While Israel may be a perennial pariah state for the left (including the ANC), most countries of the world do not have this single-minded view. If they did, the conflict would be incapable of resolution.

Mogoeng’s evisceration by the ANC and the call for him to appear before the Judicial Services Commission (JSC) for his comments, is less warranted in this case than in others where Mogoeng has expressed opinions, both judicial and public.

Concern over his suitability

When Mogoeng was interviewed for the position of Chief Justice in 2011, civil society and opposition parties raised six areas of concern over his suitability. They related to ethics, gender sensitivity, homophobia, experience, faith and jurisprudential philosophy.

Mogoeng failed to recuse himself in two cases where his wife was the prosecutor.

Mogoeng reduced a man’s conviction for tying his girlfriend to his car, dragging her along a gravel road at speed for 50 metres and then denying her access to medical treatment, arguing that the victim had ‘provoked’ the accused, and did not suffer serious injuries.

In a rape case involving an estranged husband, Mogoeng reduced the man’s sentence because the attempted rape of his wife was not as ‘serious’ as it would have been if committed by a stranger.

Mogoeng has also been criticised for judgments concerning child rape where he implied that the non-violent nature of the rapes negated their seriousness.

Mogoeng – who is an ordained pastor with Winners Chapel International, which condemns homosexuality – said he would uphold South Africa’s constitutional protection of gay rights.

‘When a position comes like this one, I wouldn’t take it unless I had prayed and satisfied myself that God wants me to take it,’ the judge said during his nomination hearing. Some would find this messianism more than a little disturbing.

On 22 May 2019, Mogoeng attended parliament to swear in 400-odd parliamentarians after the general election. Before doing so, he called for prayer or meditation for solutions to corruption, unemployment and crime in the country. Mogoeng then fell to his knees to pray.

‘Play with fire’

Stellenbosch University’s Professor Jonathan Jansen, tweeted: ‘We play with fire when a Chief Justice in a secular, constitutional state engages in Christian prayer in the exercise of his public duties; for the same reason public schools should not run school assemblies like church services.’

President-elect Cyril Ramaphosa thanked Mogoeng for ‘going on your knees and praying’. ‘It is wonderful to have a Chief Justice who’s not only a person deeply steeped in jurisprudence but also a person deeply steeped in matters of the faith. Thank you very much, Chief Justice.’ The matter became very controversial.

Two other disturbing instances of the Chief Justice speaking his mind did not attract the ANC’s ire.

In a speech to the Black Management Forum in June 2016, Mogoeng denounced as ‘spin-doctoring’ claims that the government had plenty of land available for distribution.

In that same speech, he also said anyone acting as a ‘front’ in black economic empowerment was a ‘traitor’.

At the 17th Nelson Mandela Annual Lecture delivered in November 2019, Mogoeng said anyone living comfortably in a suburb who was ‘indifferent’ to the plight of people in Diepsloot was also a ‘traitor’, a ‘traitor of our Constitution’, a ‘traitor of Nelson Mandela’, and ‘a traitor of any other person who suffered for us to get where we are’.

Referring to the ‘polluted’ environment and fauna and flora being ‘ravaged with boldness’, he warned that ‘the kind of pollution you see in India will soon come here if you allow people that have an insatiable appetite for money in government and in the private sector, to do as they please’.

‘Toxified by racism’

In the same speech, Mogoeng said South Africa remained ‘toxified by racism because we have not dealt with the first issues of colonialism and apartheid’.

‘Anybody who is truly committed to Constitutionalism would not use the Constitution to retain toxic, colonialist and apartheid tendencies and practices under some sugar-coated pretences.’ He also warned that ‘you will not use the Constitution to resist change’.

In view of his public statements, Mogoeng would surely face the risk of applications for his recusal were he to preside in cases dealing with such subjects as fronting, the removal of the property rights entrenched in the Constitution, the environment, the constitutionality of transformation measures, or anything that could be thought of as treason. 

But the ANC’s outrage was nowhere to be seen over these other more controversial views.

In contrast to this more problematic view, which is more likely to present a judicial problem, Mogoeng’s views on Israel are not outrageous, but reflect the views of the majority of countries concerned with actually solving the conflict.

He emphasised that he remained bound by government policy. But where his views on the conflict in Israel are helpful, the ANC’s are not.

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