NADEL STATEMENT ON THE UMERITORIOUS AND BASELESS SAZF COMPLAINT TO THE JSC ABOUT RETIRED JUDGE SIRAJ DESAI, AND THE APPLICATION BY CASAC AGAINST THE JSC

19 June 2021

The baseless and vitriolic attack on retired judge Siraj Desai by the South African Zionist Federation (SAZF) in the form of their complaint notarized in apartheid Israel and lodged with the Judicial Services Commission (JSC) warrants a response, for it underpins a sinister agenda to silence those justice and freedom loving people who speak out against the colonial occupation, crimes of apartheid and genocide by the Zionists against the people of Palestine.

Judge Desai, by expressing his support for the people of Palestine, has not committed a breach of the Judicial Service Commission Act or the Code of Judicial Conduct. His principled stance on issues of social justice globally is consistent with the values and precepts that informed our struggle against colonialism and apartheid, as well as our global solidarity with the oppressed in other parts of the world, especially in occupied Palestine.

The JSC, which was established in terms of section 178 of the Constitution, should refuse to accept or validate this complaint by the SAZF and not waste any resources investigating it, for it does not involve any matter concerning the administration of justice in South Africa. We should be mindful too that Judge Desai, who is currently a retired judicial officer, has not committed any judicial misconduct to begin with and that his support for the people of Palestine is commendable.

Judge Desai has been consistent in his support for the Palestinians for many years, even before his retirement, and therefore the motive and timing of the SAZF complaint is obvious, coinciding as it were when apartheid Israel has committed heinous crimes against the Palestinian people recently, and when misperceptions abound of the alleged unfair treatment of judicial officers who appeared before the JSC recently and were robustly questioned on their commitment to human rights and to fighting corruption.

The SAZF complaint against Judge Desai also coincides with the misguided application instituted by CASAC against the JSC, based on the perceived irregular questioning of judicial candidates by members of the JSC.

One such candidate is Judge David Unterhalter who failed to get the nod from the JSC for the vacancy on the Constitutional Court, after he was questioned about his declared membership of the South African Jewish Board of Deputies (SAJBD), an organisation well known for its support for the Zionist and apartheid state of Israel, and his understanding and commitment to human rights values and international law.

We submit that the malicious complaint by the SAZF is unmeritorious and similarly the application instituted by CASAC, whose blatant display of double standards is equally astonishing as it is disappointing for an organisation that has sworn to uphold the values and precepts of our constitution.

They (CASAC) are objecting to the line of questions about judicial candidates’ interest in and commitment to human rights, but never once objected to similar robust questions posed to those judicial candidates who were known or perceived to be associated with the Broederbond, a secret organisation well known for its support of the apartheid regime and the heinous atrocities committed against Black people in South Africa.

The struggle against apartheid was a just and partisan cause in South Africa, and so too the struggle against Zionist oppression and exploitation of the Palestinians.

Support for Zionist oppression in occupied Palestine can never be equated with the legitimate struggle for social justice, equality, and freedom, globally and locally.

We do not believe that it is necessary for Judge Desai to explain or justify his commitment to human rights, and the values of freedom, equality, and justice.

NADEL supports the robust questioning of any judicial candidate’s commitment to human rights and finds the narrative of ‘unfairness’ to be absurd. Any judge’s view on human rights is central to their eligibility or suitability for high judicial office. Members of the JSC were therefore entirely justified in asking judges, including Judge Unterhalter, questions which sought to test their understanding of human rights, globally and locally, mindful too that all judicial officers are required to have regard to international law when interpreting the Bill of Rights (see section 39 of the Constitution). We therefore call on CASAC to withdraw its application and not waste any resources in pursuing a Zionist agenda. 

The SAZF complaint falls outside the mandate and scope of the JSC, and lacks any merit and substance, making it unworthy of investigation by the JSC. We therefore call on the JSC to dismiss the SAZF complaint against Judge Desai, failing which it will be in the public interest for individuals and organisations to be permitted to make representations to the JSC in an open and transparent process. 

Issued on behalf of the National Association of Democratic Lawyers (NADEL) , South Africa, 19 June 2021