South Africa’s Chief Justice under fire for acting like a judge!
By David E. Kaplan
Should not a country’s Justices – even more notably its Chief Justice – be imbued with the qualities of “open-mindedness”; of willing to hear and consider the views of all sides of a case?
In other words, possessing a mindset that is “balanced”.
Law students, long before they ever enter a courtroom are only too familiar with the Latin phrase Audi alteram partem meaning “listen to the other side”, or “let the other side be heard as well”. It is the principle that no person should be judged without a fair hearing and in which each party is given the opportunity to respond to the evidence against them. It is a fundamental principle of legal systems the world over and most certainly in South Africa where I studied and practiced Criminal Law. I quoted it regularly, not so much in court where it was self-evident but in social situations whenever I was ‘accused’ of defending clients who “were obviously guilty”.
I would reply:
“Audi alteram partem”.
Everyone deserves a fair hearing.
That same principle to people should apply no less to nations – and in this case – the State of Israel. South Africa’s Chief Justice Mogoeng Mogoeng understands; his ruling ANC government clearly does not.
The ANC viciously turned on its Chief Justice following Mogoeng’s recent participation in a webinar hosted by The Jerusalem Post where he lamented his government’s “lopsided attitude” toward the Israel-Palestine conflict, adding that “it would have greater influence if it displayed a more balanced approach.” Mogoeng took part in the webinar along with South Africa’s Chief Rabbi, Warren Goldstein.
The response was quick. The ANC’s National Spokesperson, Pule Mabe, said Mogoeng had entered the arena of “political commentary”, which could make him vulnerable to adjudicating on human rights matters in the future.
How so? By exhibiting understanding and exercising balance?
Is this not what one would expect from a judge, particularly from a Chief Justice?
The ANC spokesperson added:
“It was rather unfortunate for the Chief Justice to state that the ‘South African government policy was binding upon himself and that he was not seeking to reject it’, but then clearly and openly opposes it as a citizen.”
The expectations of a judge relate to law, not to a political party’s policies not yet embodied in law. There is no law in South Africa – not yet at any rate – that says a person, or a judge cannot express a viewpoint advocating open-mindedness and balance.
Yes, South Africa has “downgraded” its diplomatic relations with Israel, but it was an executive not a legislative “decision” to recall its ambassador. South Africa still runs an office in Tel Aviv that is staffed dealing with bilateral issues between the two countries. It is hoped that full diplomatic relations be resumed sooner rather than later.
Rather than criticize Mogoeng, the honourable Chief Justice should be praised for exercising the characteristics for which he was most likely first appointed.
South African citizens are cognisant that their country has uniquely three capitals – Pretoria the administrative capital, Cape Town the legislative and Bloemfontein the judicial. It is not so much the separation – geographically – of the three cities across the country that is significant but more the metaphor of the ‘separation of powers’ between the three branches of government. Chief Justice Mogoeng was not acting contrary to any law; he was questioning a prevailing controversial policy motivated by the BDS movement that is committed to Israel’s destruction, that he felt was not in his country’s best interests. The Chief Justice’s position is supported by South Africa’s own intent as seen over the years from the days when Nelson Mandela was president.
– How often has South Africa expressed that it would like to be a player in trying to resolve the intractable Israel-Palestine conflict?
– Have I not personally heard each South African ambassador to Israel remark every year on South Africa’s Freedom Day celebrations in Tel Aviv, how South Africa can, with its expertise in conflict resolution, help bring the parties together to try reconciling their differences?
– How often have I heard the response of Israeli politicians welcoming and thanking South Africa’s offer with the words: “We have so much to learn from your experiences and expertise in conflict resolution.”
Well, you cannot be a player, or expect to be a player, if you are openly one-sided, only criticize one party to the conflict and display little or no understanding of the concerns of the other party to the dispute. This is something a judge would be keenly aware of and this is what Chief Justice Mogoeng Mogoeng was expressing when he added at the webinar:
“As a citizen of our great country, we are denying ourselves a wonderful opportunity of being a game-changer in the Israeli-Palestinian situation.”
South Africans should be proud of their Chief Justice for acting like a judge instead of him now being targeted by his government!
Following the webinar, the Chief Justice Mogoeng Mogoeng has had many an insult hurled at him. According to some, he should “shut up and focus on judgements”, that he “is a disgrace”, “ignorant”, and “should step down”.
On the contrary. Born to a father who was a miner and a mother who was a domestic worker, young Mogoeng became politically active at high school and was briefly suspended for organising a memorial to the victims of the Soweto uprising. Senior Mogoeng knows all about the struggle and the issues involved.
No; he should not “step down”. On the contrary, the people of South Africa should “step up” to support him.