Judges, active or retired, should be treated equally before the Judicial Service Commission (JSC) by the rightful application the code of judicial conduct. It is therefore expected that judges, at all times, conduct themselves in a befitting way as stated in the constitution of the country.
JSC has not been consistent when dealing with complaints over the years. Retired Judge Siraj Desai abused his position over the years to advance his political interests, and the rightful institution did nothing to stop him from such misconduct.
After serving Western Cape High Court for 25 years, Judge Desai retired from his position. He was then appointed by President Cyril Ramaphosa as the Legal Services Ombudsman, an office vested with a sole mandate of safeguarding and advancing the legal profession by investigating complaints and alleged maladministration.
Can such an important office be occupied by someone with such a deplorable reputation during his 25-year tenure with the Western Cape High Court? Given Judge Desai’s unbecoming behaviour, he he is surely not supposed to be handling complaints, as others are complaining against the very person who should resolve complaints. This is the conundrum of conundrums.
The South African Zionist Federation (SAZF) has recently laid a complaint to the Judicial Conduct Committee (JCC) regarding the misbehaviour of Judge Desai. He is being accused of involving himself in political controversy, misusing the prestige of his Judicial Office to advance his personal political interests, failing to recuse himself in a case in which he was obviously conflicted, and involving himself in activities that used the position of his Judicial Office to promote a partisan political cause.
The Chief Justice, Mogoeng Mogoeng, whose term is nearing its end, was lamented for his stance on Covid-19 vaccinations and the remarks he made during a Webinar on Israel, expressing his love for the Jewish State, based on his faith.
He was brought before the Judicial Conduct Committee which ordered the Chief Justice to apologize, something which he was not prepared to do no matter what the consequences.
“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,” said Chief Justice Mogoeng.
Judge Desai did at least the same last year during his interview on an Iranian YouTube channel, where he made inappropriate comments comparing Ayatollah Khomeini to the late former President Nelson Mandela.
It does not feel right that the world-renowned peacemaker, Nelson Mandela, is being likened to a warmonger like Khomeini who was leading Iran during the war with Iraq. The Iran-Iraq war lasted for 8 years which resulted in death and poverty, even after so many years.
Unlike Judge Desai, who also referred to the United States as the “Great Satan”, Chief Justice Mogoeng only called for South Africa to take a more objective and active stance on the issue of the Israel-Palestine conflict. While one is calling for war, the other one is calling for peace, but the one calling for peace is being crucified because he is not anti-Israel.
Judge Desai and Justice Mogoeng are two legal minds who hold different opinions on the Israel-Palestine issue. Is it fair to target those associating with Israel or those who are making an objective stance?
According to the complaint filed by the Zionist Federation, Judge Desai has a long history of promoting an anti-Israel political lobby. “Judge Desai has a long history of endorsing and promoting the anti-Israel political lobby. This includes leading an anti-Israel tour to the Gaza Strip with BDS (Boycott, Divestment and Sanctions movement) activists and participation in BDS activities and events.”
“In 2018, Judge Desai welcomed and supported the Palestinian militant group Hamas during their trip to South Africa. This, despite the fact that the Hamas Charter includes direct calls for violence against Jewish people and the destruction of the State of Israel. Using the prestige of the Judicial Office to publicly promote an extremist organization is clearly contrary to the precepts underlying the Judicial Code of Conduct,” read the complaint.
The DA’s Glynnis Breytenbach came out gun blazing when Judge Desai was appointed Legal Officers Ombudsman in 2020, “Judge Desai is very clearly a political appointment who has never made any secret of his fondness of the ANC and cannot by any stretch of the imagination, be described as a judicial luminary. Not being much of a self-starter, it is clear that little or no proper thought was given to the subject of legal ethics, nor of the ethical well-being of the legal profession in general, in making this appointment. It demonstrates a real lack of understanding of the legal profession and it is a resounding disappointing appointment,” said Breytenbach.
The Judicial Service Commission should take appropriate measures against Judge Siraj Desai in order to maintain the dignity and independence of the judiciary. Judges should be allowed to air their opinions (right to freedom of expression) but they should be doing that under the umbrella of the law governing them. They hold influence in our society, and such influence should not be abused to pursue political goals.