JUDICIAL CONDUCT COMMITTEE OF THE JUDICIAL SERVICES COMMISSION In re: Complaint by Professor Anthony Joseph Arkin on behalf of the South African Zionist Federation RESPONSE TO THE COMPLAINT AGAINST JUDGE DESAI ___________________________________________________________________ A INTRODUCTION 1. The complaint by Professor Anthony Joseph Arkin on behalf of the South African Zionist Federation (SAZF) dated 9 June 2021 against Judge Desai was referred to the Judicial Conduct Committee (JCC). Khampepe ADCJ, the Acting Chairperson of the JCC, issued a ruling in terms of section 17(1)(b) of the Judicial Service Commission Act 9 of 1994 (the Act), designating Dambuza JA, a member of the JCC, to determine the merits of the complaint. 2. Dambuza JA issued an invitation, in terms of section 17(3) of the Act, for Judge Desai to respond in writing to the allegations levelled against him by the SAZF. 3. This response is submitted on behalf and on the instructions of Judge Desai and addresses the merits of the complaint. To the extent that the contents of this response are inconsistent with the allegations contained in the complaint, such allegations must be taken to be denied. Judge Desai, furthermore, reserves his right to respond further to any new matter contained in the Complainant’s reply to this response. 4. This response is structured as follows: 4.1. Part B sets out the details of the parties. 4.2. Part C sets out the principles which underpin this response. 4.3. Part D provides an ad seriatim response to each factual allegation in the complaint. 1 4.4. Part E draws the necessary conclusion, and requests the dismissal of the complaint. B THE PARTIES The Complainant 5. The deponent to the complaint is a resident in Israel, an honorary life president of the KwaZulu Natal Zionist Council, and a member of the South African Zionist Federation (SAZF). 6. The SAZF is an avowedly Zionist pro-Israel lobby group. 7. It must be emphasized that this is not Judge Desai’s description of the SAZF. It is the description of the SAZF by the SAZF itself. 8. According to its website the SAZF: ”..looks after matters relating to Israel and its image in South Africa. As advocates for Israel in this country, our mission is to build strong support and love for the Land and State of Israel. This support remains powerful among the SA Jewish community and millions outside the community. We work pro-actively to reduce the amount of anti-Israel sentiment in South African political, religious, and cultural communities through education, advocacy, and lobbying.”1 9. One of the core objectives of the SAZF is “Israel Advocacy and Activities”. 10. The SAZF website states: “…The South African Jewish community has always been proudly Zionistic, standing our ground and defending Israel on a daily basis. The SAZF’s role is to do just that by looking after matters relating to Israel and its image in South Africa. As steadfast advocates for Israel, our mission is to build strong support and love for the State of Israel and its lands. This support remains unwavering among the SA Jewish community. ‘The Fed’ also works pro-actively to reduce anti-Israel sentiment in South African political, religious, and cultural 1 https://www.sazf.org/about-us 2 communities. This is accomplished through education, advocacy, and lobbying.”2 11. It is clear that the complaint against Judge Desai by the SAZF forms part of the pro-Israel activities of the SAZF and that the lodging of the complaint is consistent with the aims and objectives of the SAZF. In other words, the complaint against Judge Desai has been lodged with the express aim of furthering the pro-Israel goals and political objectives of the SAZF. 12. This is evident from the website of the SAZF where the complaint against Judge Desai, is listed under the heading “Current Issues”.3 The Respondent 13. Judge Desai matriculated at the Trafalgar High School in District Six, Cape Town, and was compelled to pursue tertiary education at The University of Durban Westville (Kwazulu-Natal) because of the Separate Universities Act then being rigidly enforced. He started his professional career in 1976. First as a clerk to Mr AM Omar (later to become South Africa’s first post-apartheid Minister of Justice) and then (1978) as an attorney on Mr Omar’s staff. 14. The historic events in progress at the time – the political and social unrest in response to settler colonialism and apartheid – determined the nature of his practice for the ensuing years. In 1981 he became an advocate and practiced at the Cape Bar until 30 June 1995. During his years as an advocate, he was, inter alia, a prominent human rights lawyer and activist and appeared as legal counsel in many important and politically significant matters. His clients included community leaders, human rights activists, several accused in terrorism cases during the Apartheid era, and persons dispossessed of their land rights in Cape Town, in the Eastern Cape and in the North-West Province. 15. He was a founder member of the National Association of Democratic Lawyers (NADEL) which vigorously campaigned for the transformation of the apartheid era legal profession and judiciary. Prior to becoming a judge he was the National Vice-President of NADEL. He was elevated to the bench on 1 July 1995 by the Judicial Service Commission and served as a judge of the Western Cape High Court for 25 years. As an attorney and also as an advocate, Judge Desai chaired the Woodstock Salt River Walmer Estate Civic Association (WOSAWA) which fought and supported the campaigns to save the land in District 6 for restitution purposes. He served as a council member 2 https://www.sazf.org/israel-advocacy 3 https://www.sazf.org/issues 3 and chairperson of the Cape Peninsula University of Technology. Since 1996 he was the deputy chairperson of the Foundation for Human Rights in South Africa until his retirement in April 2021. C PRINCIPLES UNDERPINNING THIS RESPONSE 16. At the outset, Judge Desai submits that his response to the complaint set out below must be considered in the context of the following principles to which he subscribes and which are relevant to this complaint. 17. Firstly, silence by judges in the face of injustice and violations of basic human rights, particularly given the history of South Africa, is inconsistent with judicial office.4 It is precisely for that reason that the oath required of judicial officers under section 6 of schedule 2 of the Constitution, requires a judge to swear or affirm that he or she will uphold and protect the human rights entrenched in the Constitution. Judicial officers, therefore, have a particular duty to confront injustice, promote equality for all under the law and condemn racism in all its forms.5 18. Secondly, judges do not exist in isolation. They do not perform their functions in a cloistered monastery isolated from society. They are members of the community with their own beliefs, opinions, and sympathies. As the Constitutional Court has explained: 4 Cameron, Davis & Marcus ‘The Administration of Justice, Law Reform and Jurisprudence’, Annual Survey of South African Law, 1993, p 795. See also Richard Goldstone ‘Do Judges Speak Out?’ (1994) 111 SALJ 258 at 259. 5 See for example the recent June 2020 public statement signed by seven justices by the California Supreme Court, “"In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all. We must, as a society, honestly recognize our unacceptable failings and continue to build on our shared strengths. We must acknowledge that, in addition to overt bigotry, inattention and complacency have allowed tacit toleration of the intolerable. These are burdens particularly borne by African Americans as well as Indigenous Peoples singled out for disparate treatment in the United States Constitution when it was ratified. We have an opportunity, in this moment, to overcome division, accept responsibility for our troubled past, and forge a unified future for all who share devotion to this country and its ideals. We state clearly and without equivocation that we condemn racism in all its forms: conscious, unconscious, institutional, structural, historic, and continuing. We say this as persons who believe all members of humanity deserve equal respect and dignity; as citizens committed to building a more perfect Union; and as leaders of an institution whose fundamental mission is to ensure equal justice under the law for every single person. In our profession and in our daily lives, we must confront the injustices that have led millions to call for a justice system that works fairly for everyone. Each member of this court, along with the court as a whole, embraces this obligation. As members of the legal profession sworn to uphold our fundamental constitutional values, we will not and must not rest until the promise of equal justice under law is, for all our people, a living truth." https://newsroom.courts.ca.gov/news/supreme-court-california-issues-statement-equality-and- inclusion 4 “…absolute neutrality” is something of a chimera in the judicial context. This is because judges are human. They are unavoidably the product of their own life experiences, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties.”6 True impartiality does not require a judicial officer to have no sympathies or opinions when it comes to violations of human rights, injustices and inequality.