Prominent judge guilty of 'unbecoming' conduct

Retired Western Cape High Court Judge Siraj Desai conducted himself in a manner unbecoming of a judge by becoming involved in a political controversy. News24 reports that this was the finding of the Judicial Conduct Committee following a complaint lodged against him by the SA Zionist Federation (SAZF). Referring to Desai as a ‘politicised’ judge, the SAZF said he had breached the Judicial Service Commission (JSC) Act: Code of Judicial Conduct in several instances between 2009 and 2020 by becoming involved in political controversy; using or lending the prestige of judicial office to advance his private interests and those of others; failing to recuse himself in a matter where there was a possible conflict of interest; becoming involved in extrajudicial activities in breach of the impartiality rules; and becoming involved in activities incompatible with judicial office. The SAZF took exception to Desai's participation in the planned Gaza Freedom March in Egypt in 2009. The organisation also objected to his support for the Palestinian-led Boycott, Divestment and Sanctions (BDS) campaign; Desai's not recusing himself from a BDS protest-related case before him, which the SAZF argued conflicted with his duties as a judicial officer; his praising of Iranian political and religious leader Ayatollah Khomeini; and attending a meeting with Hamas leaders and the ANC. Desai, who was appointed as Legal Services Ombud after his retirement in 2020, was found to have been out of line in signing a BDS statement condemning Israeli policies in his capacity as a High Court judge in June 2020.

Judge Nambitha Dambuza found by adding his name to the statement, Desai became involved in a political controversy. News24 reports she said: 'While it is true that judges, as citizens of this country, are entitled to hold political views, they exercise such rights subject to the rigours of their calling, including the applicable ethical constraints. This is one of the sacrifices the judges of this country have made. The reason for stringent ethical constraints in relation to judges has been repeatedly pronounced. The JSC Act and the code seek to maintain and promote public confidence, integrity and the independence of the office of a judge and the judiciary as a whole. It is therefore not open to Judge Desai to assert the right to freedom of association or human rights activism when provisions of the code are invoked.’ Desai was warned not to participate or become involved in any political controversy or activity in the future, unless when necessary for the discharge of judicial duties.

Desai says the actions he has taken in support of campaigns against Israel’s apartheid practices against Palestinians were not political, but were carried out in defence of human rights. The activist who has spent nearly half a century of service in the legal field is unbowed in the face of a recent finding against him. Desai told IoL that he has spent his entire life opposing human rights abuses in Israel and the rest of the world. ‘It is an attempt to muzzle me from commenting on what for me today is the most significant human rights issue in the world. They’re muzzling me on something judges have traditionally been vocal about. Judges have spoken out on human rights issues. There were some who spoke out against the apartheid government in SA. The majority, to their discredit, kept quiet,’ he said. Desai has appointed counsel to pursue an appeal against the finding.