1. Uncrumpling the paper.

Do you remember how, a decade ago, you might have written or typed something on a piece of paper? (You might still do this, though it seems less likely in these so-called paperless days.) Then you crumpled up that piece of paper, but suddenly decided you needed to look at it again, whereupon you uncrumpled the paper and smoothed it out, using the heel of your palm to flatten it neatly?

I’d like to try doing this regarding the recent brouhaha regarding Chief Justice Mogoeng Mogoeng. Let’s, in other words, revisit the matter and take a fresh look.

2. The finding.

In response to complaints made by (those whom Capt. Renault in Casablanca might have called) the usual suspects – Africa 4 Palestine, the SA Boycott Disinvestments and Sanctions Coalition, and the Women’s Cultural Group [who they? – Ed.] – Judge Phineas Mojapelo, representing the Judicial Conduct Committee of the Judicial Service Commission (JSC), found that the CJ became involved in political controversy or activity during an online seminar (webinar), hosted by The Jerusalem Post newspaper on 23 June 2020.

This, Judge Mojapelo found, breached the judicial code of conduct. He said: “Whether we like it or not, the chief justice isn’t like any other citizen of South Africa. He is the head of the judiciary and is subject to the restraints of that office, including the ethical rules which govern the conduct of each ... judge. He is subject to those restraints of his office in his official and private capacity”.

Judge Mojapelo said that therefore the CJ had to apologise, and he took the time and trouble to lay out precisely what the wording of this apology should be. Presumably Judge Mojapelo did this because he is cognisant of the CJ’s workload, but also because the CJ had unfortunately (for himself) gone on record inter alia as follows: “I stand by my refusal to retract or apologise 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 apologise. If I perish, I perish.” [1] The CJ was instructed to apologise by March 14; so far, the apology has not been forthcoming.

In response to Judge Mojapelo’s decision, there seems to have been a fair amount of ululation in certain quarters. For example, one statement hailing the decision was issued by Ronnie “Red Ron” Kasrils, a notable leader of the working classes, struggle hero, writer, and former minister in various of our governments. His statement was rather effusive, reminding me of Shylock’s expostulation in Shakespeare’s Merchant of Venice. “A Daniel come to judgment, yea, a Daniel! /O wise young judge, how I do honour thee!”

3. What the CJ said.

Although it has become popular these days not to bother with actual evidence, let’s consider exactly what the CJ said, especially his introductory remarks.

“Let me begin by saying I acknowledge without any equivocation that the policy direction taken by my country ... is binding on me ... as any other law would [be]. So, whatever I have to say should not be misunderstood as an attempt to say the policy direction taken by my country in terms of [its] constitutional responsibilities is not binding on me. But just as a citizen, any citizen, is entitled to criticize the laws and the policies of South Africa or even suggest that changes are necessary [...] that’s where I come from.”

Then, continuing his discussion with Chief Rabbi Warren Goldstein about SA/Israeli tensions [2], Mogoeng said SA’s history of forgiveness and understanding should have informed its approach to peacemaking and he lamented SA’s adoption of a lopsided attitude toward the Israel-Palestinian conflict. He argued that SA would have greater influence if it displayed a more balanced approach.

As a practising Christian, he said, he believed that those who curse Israel would themselves be cursed. “If I curse Abraham and Israel, the almighty God will curse me too. I cannot do anything, as a Christian, other than love and pray for Israel because I know hatred for Israel by me and for my nation can only attract unprecedented curses,” he said.

“Have we cut diplomatic ties with our colonizers?” Mogoeng asked. “Have we disinvested from our former colonizers and those responsible for untold suffering in South Africa and Africa? Did Israel take away our land or the land of Africa, did Israel take our mineral wealth?”

The CJ added: “... [W]e [South Africans] are denying ourselves a wonderful opportunity of being a game-changer in the Israeli-Palestinian situation. We know what it means to be at loggerheads, a nation at war with itself. The forgiveness that was demonstrated, the understanding and big heart displayed by President Nelson Mandela ... is an asset we must use around the world to bring peace ...”.

4. Cutting to the chase: some observations (obiter dicta) from the desk of Judge (NOT!) Gordin.

4.1 The CJ breached the judicial code of conduct. My question, however, is this. Was this breach of sufficient magnitude to warrant the humiliating sanction applied by Judge Mojapelo? The CJ is, after all, the CJ and, as best we know, has not been out of line when conducting his duties as such (see 4.7 below).

4.2 It’s common cause that outside court the CJ says some pretty off-the-wall things (cf. Covid vaccinations). It’s also common cause that the CJ is a devout “fundamentalist” believer. What the connection might be between these two facets of his life, if any, is not relevant here. The point is that, so long as he does not breach his constitutional oath, especially in court, there is, in my humble opinion, no foul.

4.3 In this connection (incidentally), it seems gratuitous, if not insulting, to tell the CJ how to apologise. Clearly, the CJ has shown himself to be highly adept when it comes to resounding rhetoric of all kinds, verbal and written, even if he makes copious use of the King James version of the Bible. 

4.4 It seems bizarrely totalitarian that Judge Mojapelo, who presumably discussed the matter with his brothers and sisters on the Conduct Committee, opted to force the CJ to apologize, rather than just rap him over the knuckles. Very odd – given all that the JSC turns a blind eye to (see 4.10 and 4.11 below).

4.5 I must also regretfully point out that bolstering judicial conduct and/or the Constitution are not Number One on the Priority List of either the chief rabbi and The Jerusalem Post or on that of the complainants. They all clearly have other interests, other large fish to fry. The chief rabbi wanted to score a PR coup on behalf of Israel and the local Jewish community; the Post, it is common cause, is a pro-Israeli government publication; and Kasrils et al are pro-Palestinian. Now, while I have too much respect for the chief rabbi, the Post, and Kasrils et al to connect any of them with VI Lenin’s infamous phrase, might it not be cogently argued that the CJ ended up being nothing more than a “useful idiot” for all of them?

4.6 One has to squint hard – I had to polish and re-polish my spectacles – to find the cardinal sin the CJ purportedly committed vis-à-vis Israel. He said we should all, including the Israelis and Palestinians, love one another (kumbaya); that SA could help in this regard (Mandela taught us how); and that he feels he must say this stuff because he loves Israel, as the Bible tells him he should. Nu? What’s the difficulty? What in those sentiments represents a disavowal or denigration of the National Democratic Revolution? (Far more worrying, I thought, were his comments on “colonialism” – you can see which way he’s going to go in certain, highly sensitive cases that might come before the Concourt.)

4.7 It also should be remembered that the CJ was appointed by former president JG Zuma who, I believe it fair to suggest, might have thought at the time that it could come in handy to have his “own person” at the apex of the apex court. Yet we all know – regarding those matters pertaining to the former president which have come before the Concourt – that the former president has not exactly had his way. I.e., as best we know, in this regard, the CJ has not been out of line when conducting his duties as our Concourt chief. 

4.8 Just now, however, the Concourt is required to adjudge how to deal with Zuma’s flouting of the law regarding the Zondo commission. Is this the correct time for Judge Mojapelo to accuse the CJ of doing a similar sort of thing? (The CJ hasn’t been accused of breaking the law, I know; but he has been castigated for treating it with a Zuma-like disrespect.) Alternatively, if you were a conspiracy theorist (which I of course am not), you might wonder if telling the CJ to mind his Ps and Qs at this point was some kind of message. (Other alternatives are that all those judges really want their vaccines, and they want them now; or that the 666 fellow has gotten his mitts into the JSC.)   

4.9 Writing in Business Day, Milton Shain, emeritus professor of history at the University of Cape Town, noted that often “Israel alone is signalled out for obloquy, while the human rights abuses of many other states are ignored. Mogoeng made this clear. In so doing, he crossed a red line” – especially for the ANC. Might one be forgiven for wondering precisely towards whom Judge Mojapelo feels allegiance?

4.10 Meanwhile, Sara Gon of the Institute of Race Relations remarked in the Jewish Report today that the Mogoeng matter was, in any case, nothing like the crisis “that has beset the judicial system by the failure of the JCC to get to grips with the matters against Judge [John] Hlophe over more than a decade. The contrast is disgraceful.” Ah yes.

As the FW de Klerk Foundation stated about a week ago on Politicsweb: “The numerous allegations against Judge Hlophe must be thoroughly investigated in accordance with the JSC’s Code of Conduct. It is essential that, as the guardian of the integrity and independence of the judiciary, the JSC’s own conduct should be exercised in a manner that is ... consistent with the Constitution”. More to the point – I hope – is this question: how come Judge Hlophe doesn’t even get slapped on the wrist but the CJ gets publicly embarrassed?

4.11 So we get this decision, as it were – but nothing is done by either the JSC (or by the CJ, for that matter) about the State Security Agency having had two full-on projects to corrupt the judiciary. Go figure.  

4.12 I rest my uncrumpled piece of paper.

***

5. Appendix: some Biblical/historical background. [The following section is offered as a bonsella for readers; it is not required reading.]

Some Biblical/historical background relating to Judge Mojapelo’s first name. While “Phineas” is not a colonial name, heaven forbid, it does unfortunately emanate from the history of the very people who many say are running an apartheid-like regime – the apartheid part being why some greeted Judge Mojapelo’s decision with exultation.

Phineas, it seems, was a “priest” (which in those days was like being a ministerial director-general) during the Israelites’ Exodus journey. This, readers will recall, took an inordinately long 40 years, apparently because there were ANC-like bureaucrats in middle management, who, for various reasons, possibly related to tenders for the supply of manna and quail, couldn’t or wouldn’t find the most direct route from Egypt to the Promised Land.

As a youth (roughly Julius Malema’s age) Phineas distinguished himself as a crusader (so to speak) against heresy. Displeased with the Israelite propensity to marry Moabites and Midianites (which was contrary to “apartheid” thinking, as it were [3]), Phineas personally executed an Israelite man (Zimri) and a Midianite woman (Cozbi) while they were together in the man’s tent, planning to do you know what [4]. Phineas ran an assegai or spear through the man and the belly of the woman. GBV was not considered a major issue then – yet another obvious failing of the Israelites. [5]

On the downside, however, the name “Phineas” has been shown by scholars to mean “Nubian” – i.e., black-skinned [6]. In other words, such an appellation might after all be a sort of colonial construct, and, well, I don’t know, Judge Mojapelo might consider taking a “decision” against his parents for having named him thus. 

There’s another issue that bears consideration. In the Talmud, the rabbis took it upon themselves to comment, politely but often penetratingly, on the Bible. In other words, though they would never have put it this way, some of them had some “issues” with the putative word of Jehovah.

Now, in the Talmud (Sotah, 22b) there is a saying that goes as follows: “[Do not be like] one who acts like Zimri [who was stabbed while on the job, as it were] and asks for a reward as if he were Phineas”. No problem, you might say. Clearly this refers “to hypocrites who ask for undeserved rewards and honours,” which is how the saying is generally construed.

But if you’re wise to the canny way in which our kindly sages thought, you do find yourself wondering who exactly the “hypocrite” is, or if there might be more than one; you realize that the implication could well be that Phineas seemed just a tad more grasping, zealous, and sycophantic than a decent human being should be.

Footnotes:

[1] It remains unclear why so many public figures in this country, when called upon to apologise or to retract a statement, insist on saying they are prepared to die for their views. Chill down, everyone. This is not a good time for calling on the Grim Reaper; internationally, s/he’s working overtime already.

[2] News flash: it is common cause that in recent years, the SA government has become increasingly hostile to Israel. In 2018, South Africa withdrew its ambassador from Israel and formally downgraded its ties following clashes on the Gaza border.

[3] Possibly there was an anti-Moses faction among the Israelites, as in the present-day ANC – don’t forget that Moses’ father-in-law Jethro, to whom Moses had been clearly attached and who had been very kind and helpful to Moses, was a Midianite priest.

^[4] 1st-century Romano-Jewish historian Flavius Josephus, something of a rationalizer, would later claim that Cozbi had obviously been a honey-trap.

^[5] I am well aware, by the way, that Yahweh lavished a great deal of praise on Phineas. “God declared that Phineas, and his sons’ sons for all eternity, would receive divine recognition for this; a covenant of peace and the covenant of an everlasting hereditary priesthood.” This smacks of “cadre deployment” to me, but anyway. Also, one needs, I think, to appreciate the context and politics of the era – Yahweh, a shadowy figure of no fixed abode and certain Stalinist and anti-LGBT tendencies, had a major NDR-like plan to get in place and He was by then growing increasingly frustrated.

^[6] Hebrew/Biblical etymology is pretty convoluted, opaque, and more Politically Correct than you might think. You didn’t just come out and call a fellow “black”.