Conduct of the JSC
5 March 2021
The FW de Klerk Foundation has taken note of the differing manner in which the Judicial Services Commission of South Africa (JSC) appears to investigate complaints against members of the judiciary.
The JSC is a constitutional body in terms of section 178 of the Constitution (read with the Judicial Service Commission Act 9 of 1994). The primary functions of the Commission are to interview candidates, and make recommendations, for appointment to the bench as well as dealing with complaints brought against the Judges.
The JSC’s judicial conduct committee recently rebuked Chief Justice Mogoeng Mogoeng for comments he made during 2020 on the Israeli-Palestinian conflict – in which he criticised SA’s foreign policy – as well as his continued defiance after the comments drew a major response. Chief Justice Mogoeng defended himself by saying his comments were made as a Christian. However, Judge Phineas Mojapelo, a member of the JSC’s Judicial Conduct Committee tasked with probing three complaints laid against Mogoeng, emphasised that the complaint was not about freedom of religion or freedom of expression but “merely about whether the code of conduct for judges was breached”.
Mojapelo found that comments about the Israeli-Palestinian conflict made by Mogoeng in a webinar hosted by The Jerusalem Post amounted to “a breach of the code of conduct for judges and that Mogoeng had got himself involved in a political controversy”. According to Mojapelo “judges are to stay out of politics and are only permitted to pronounce on the legal and constitutional boundaries that may apply to those politics. When called upon to pronounce, they do so on the basis of the Constitution and the law and not on the basis of any preconceived notions – not even religion – however committed to those notions. That is what the Constitution and their oaths or affirmation bind them to”.