In his book All Rise: A Judicial Memoir, former deputy chief justice Dikgang Moseneke tells an awkward anecdote about chief justice Mogoeng Mogoeng. It was shortly after Mogoeng was appointed to lead the judiciary. Justices of the Constitutional Court, including Moseneke, were still trying to establish rapport with the new head of the court.
Moseneke writes that as was standard practice, lunches in the judges’ common room were safe spaces of casual conversation, even banter about topics of shared interests. Conversations about weekend sport were seemingly a favourite. But there were no-go areas — sex, politics and religion. Until one day, when justice Zak Yacoob had something to say about how Mogoeng usually signed off his e-mails with “God bless you” .
On that day, Moseneke writes: “He cleared his throat, lifted his head and face higher than usual and politely said, ‘Mogoeng, please don’t finish off your e-mails to me with the words God bless you. You see, I do not think you have the authority to order God to bless me nor do I need prayer that God bless me. Look at me, I am an atheist and totally reprobate and yet I am just fine.”
Yacoob is said to have gone on to tell Mogoeng that God does not exist before sharing a personal story of his own disappointment in God, if he indeed existed.
I was reminded of this as the Judicial Conduct Committee last week found that Mogoeng’s utterances about Israel last year had contravened the code of judicial conduct.
During a webinar hosted by The Jerusalem Post in June, Mogoeng was asked about his stance on the diplomatic tensions between SA and Israel. Though Mogoeng admitted he, as a citizen, was bound by SA foreign policy on the matter, he expressed support for Israel and its people based on his religious convictions.
Citing scripture, Mogoeng said: “I cannot, as a Christian, do anything other than love and pray for Isreal because I know hatred for Israel by me and for my nation can only attract unprecedented curses upon our nation.”
The committee found that Mogoeng had contravened the code, which demands, among other things, that he not involve himself in political controversy and not lend the prestige of judicial office to advance any private interest. Mogoeng would argue, as he has with many controversial statements before, that just as any other citizen, he has the right to hold and express his religious views. That, as a fundamental principle, is not in dispute. The challenge with his position is defining the line between his personal rights to express his religious views and his responsibility to adhere to the code and stature his office demands.
I tell the story of the awkward encounter with Yacoob because while seemingly an insignificant interpersonal matter between two colleagues of different spiritual orientations, I believe it captures the nub of the issue. When Yacoob called out Mogoeng on his e-mail signature it highlighted how the chief justice’s views can be completely valid, even well-meaning, but the expression thereof in a particular context may be inappropriate. The position he holds burdens him with a set of limitations on his public expression of views, regardless of whether he believes in the validity of those views.
These limitations are based on the fact the public expression of those views may stoke controversy and create an impression of bias by a judicial officer, which may erode public trust in the court he presides over. The problem is not what Mogoeng said about Israel — though it was politically offensive to some.
The problem is that the chief Justice chose to opine on the matter in the first place, knowing how deeply divisive it is in our own country. This is why he should apologise. Doing so does not undermine his fundamental right to freedom of expression. It is understanding that while he is in office, he equally has a responsibility to protect its dignity against harmful perceptions that may be bring its integrity into question.
Mogoeng has previously said he would never apologise for his remarks “even if 50-million people were to march every day”. It remains to be seen how he will respond to the committee’s directive. If he appeals against the decision in court — as he is legally entitled to do — he will place his colleagues on the bench in the unenviable position of publicly interrogating the conduct of the leader of our judiciary. If he loses, it would mark a deeply unfortunate final chapter of a jurist whose work on the bench often became our nation’s last line of defence, especially when our politics threatened the legitimacy of our constitutional pillars.
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