By Stephen Schulman

“Everyone is in favor of free speech. Hardly a day passes without its being extolled, but some people’s idea of it is that they are free to say what they like, but if anyone else says anything back, that is an outrage.”

Winston Churchill

“Laws alone cannot secure freedom of expression; in order that every man present his views without penalty there must be spirit of tolerance in the entire population.”

Albert Einstein

More than half a century has passed since leaving my native land of South Africa. I left a country dominated by an oppressive racist regime where free speech was nonexistent, all criticism was suppressed and its opponents subject to severe punitive measures. Thankfully, those bad days are long gone. In 1994, the country passed into majority rule, apartheid was abolished and through free elections a representative government was elected.

However, sadly to say, after more than a quarter century has passed, bigotry, intolerance and stifling of views that disagree with those of the powers-that-be, still persist. An eloquent testimony to this fact is the ongoing saga of Chief Justice Mogoeng Mogoeng.

In July last year, the Chief Justice together with the Chief Rabbi of South Africa Warren Goldstein appeared on a webinar organized by The Jerusalem Post and moderated by its Editor- in-Chief Yaakov Katz. The Chief Justice, a devout Christian, used this platform to express his personal beliefs and views regarding the Middle East conflict. He prefaced his remarks by stating that as a citizen of his country he was bound by the laws and policies adopted by it. Nevertheless, as a citizen, he also had the inalienable right to criticize the very same policies and laws and suggest changes.

As a believer in the Bible and as a tenet of his faith he declared his love and prayers for Israel and the Palestinians as well. Neither a moral judgment was passed nor a condoning of Israel’s policies. He felt that South Africa, with its anti-Israel bias, was depriving itself of “a wonderful opportunity of being a game changer in the Israeli-Palestinian situation.” Moreover, he accused the critics of Israel of blatant hypocrisy and self-serving for maintaining relations with both former colonial powers and countries that exploit the continent today.

The expected public reaction was not long in coming!

The pro-Palestinian groups and activists, including Africa 4 Palestine, South Africa BDS Coalition and the Women’s Cultural Group, were outraged. In the eyes of the ruling ANC and the faithful, he had committed the heinous, unforgivable sin of deviating from the official line and criticizing the wisdom of their policies. Cancel Culture – the phenomenon of silencing, shaming and ostracizing people whose views or ideologies are considered problematic or offensive – came into full swing; the floodgates of official opprobrium were swiftly opened and Justice Mogoeng was deluged with protests, condemnations and questioning of his authority and moral integrity. He was insulted, besmirched and even subject to a vile, scurrilous caricature by the cartoonist Zapiro. Chief Justice Mogoeng stood his ground and refused to buckle under by renouncing his principles and beliefs.

“I stand by my refusal to retract or apologize for any part of what I said during the webinar. Even if 50 million people were to march every day for 10 years for me to do so, I would not apologize. If I perish, I perish.”

The next chapter of the saga unfolded when a complaint of him becoming “involved in political controversy or activity” was lodged by the above mentioned groups with the Judicial Conduct Committee of the country’s Judicial Service Commission that then concurred with the complainants. It ordered him to apologize for his comments about the Middle East, apologize and retract his statements concerning his refusal to back down and to sign a prewritten document drafted by the Commission to that effect. This document would not only make him eat humble pie but cause him to refute his deeply held beliefs and relinquish his dearly held principles in order to fall in line with the government’s official policy. It was a harsh judgment reminiscent of the recanting and public humiliations of the Stalinist era and the techniques of Mao Tse Tung!

Justice Mogoeng Mogoeng has vigorously refuted the charges against him and denied being involved in extrajudicial activities incompatible with the impartiality of a judge. He unequivocally stressed that he had nothing to apologize for; his conscience was clear that he would appeal the court’s decision and that he refused to sign the document. He reiterated his position that in exercising his citizen’s right of free speech, he was in no way attacking and undermining his government’s policy.

“…..judges are citizens and have constitutional rights of freedom of expression, freedom of religion, freedom of thought and freedom of opinion. It is not correct to say as soon as you assume office, you automatically let go of your constitutional rights.”

The Chief Justice also rebuked the presiding judge of the Judicial Service Commission who accused him of appearing on The Jerusalem Post webinar in order to promote his own interests, those of the publication and those of the Israeli government.

“Because it means every time a judge or a magistrate accepts an invitation by the SABC or eNCA or Newzroom Afrika they are advancing their own interests or the interests of the station so that it can have a large viewership and the judges must be punished for it.”

He stressed that this salient point could be extended to all the media.

At this point of time, the saga is still unfolding as the Judicial Service Commission’s decision regarding his refusal has not been forthcoming!

Most illuminating and possibly reflecting public opinion was an article, conspicuously devoid of any moral stance, that appeared in the Daily Maverick concerning the case of Mogoeng Mogoeng. The writer acknowledged that the ANC is virulently anti-Israel which it accuses of being (in the well-worn, inaccurate and misleading phrase) an “apartheid” state. In scouring for further justification of their attitude, he dredges up the unsubstantiated claim that Israel supplied the apartheid regime with the knowledge to build an atomic bomb. Desperately and rather pathetically, dredging even deeper, he states that: “Culturally, White South Africans sometimes saw themselves as having similarities with Israelis, an example of which can be found in at least one popular novel by Wilbur Smith at that time.” With all due respect to Mr. Smith, a talented and prolific author with over 30 novels of historical fiction to his credit and to the writer of this article, I modestly beg to differ. I was born, grew up in South Africa, attended a public school and served in the SA Defence Forces where I encountered and knew people from all backgrounds. Never once did I hear this belief expressed. Even at university where I studied South African history, did I find evidence of it! If it exists at all, it is confined to a miniscule lunatic fringe. The writer can also rest assured that Israelis would find no affinity with adherents to this credo.

The Daily Maverick contributor comforts himself by concluding that the committee’s findings and actions regarding Mogoeng Mogoeng will have a positive effect for here at last, the judiciary has actually functioned by acting in unison to prove “that judges can be, and are being, regulated and this might actually generate more trust in the judiciary among the general public.” This is a sad testament to a judiciary whose reputation is in tatters as when it quashed the case of misconduct and impropriety against a former Western Cape Judge President, and  former South African President Jacob Zuma now thumbs his nose at the commission investigating his multifarious misdemeanors by refusing to appear  before them.

Cold comfort indeed!

Most unfortunately, South Africa under its present government is on the road to becoming a failed state. Kleptocracy has become institutionalized. The ruling ANC party is dominated by nepotism and cronyism, appointing many incompetent people whose sole qualification for a post is family and/or political connections and who see it as an opportunity to fill their pockets. Crime is endemic with an ineffectual police force characterized by corruption up to the highest level. Statistics show South Africa to be the global murder and rape capital with citizens fearing for the safety of their persons and their property. Unemployment is rife with many citizens living in abject poverty. The infrastructure is crumbling with regular power outages and public transport is unreliable and unsafe: travelling on the vandalized trains involves risking life and limb. In some instances, local authorities do not fulfill their roles and in a few towns the residents have taken it upon themselves to collect garbage and supply municipal services. Has the judiciary spoken out on these burning issues?

The government ignores the injustices outside its borders. It turns a blind eye to the plight of the citizens of Zimbabwe suffering under a corrupt regime and remains conspicuously silent regarding the travesties committed on the continent. It retains close links with China – a notoriously violator of human rights and is not averse to maintaining diplomatic relations with other oppressive regimes. Nevertheless, it remains obsessively hypocritically, focused on Israel, the one democracy in the Middle East.

The saga of Chief Justice Mogoeng Mogoeng whose sole crime was a suggestion that his government take a more even handed approach to the Israeli-Palestinian conflict caused him to be treated like a pariah is a sad testament to the state of affairs and bodes ill for the future of independence of thought and free speech in a healthy democracy.

I fervently hope that my prediction will be proved wrong.

About the writer:

Stephen Schulman is a graduate of the South African Jewish socialist youth movement Habonim, who immigrated to Israel in 1969 and retired in 2012 after over 40 years of English teaching. He was for many years a senior examiner for the English matriculation and co-authored two English textbooks for the upper grades in high school. Now happily retired, he spends his time between his family, his hobbies and reading to try to catch up on his ignorance.

While the mission of Lay of the Land (LotL) is to provide a wide and diverse perspective of affairs in Israel, the Middle East and the Jewish world, the opinions, beliefs and viewpoints expressed by its various writers are not necessarily ones of the owners and management of LOTL but of the writers themselves.  LotL endeavours to the best of its ability to credit the use of all known photographs to the photographer and/or owner of such photographs