Jewish Judges targeted at JSC interviews

Questions of a discriminatory and anti-Constitutional nature were asked of two Jewish Judicial candidates at the Judicial Service Commission (JSC) interviews prior to Freedom Day. Advocate Lawrence Lever and Judge David Unterhalter were subjected to questions pertaining to their Jewish identity while no other candidates were subjected to offensive religious scrutiny.

Advocate Lever was asked about his level of religious observance, specifically whether he observes the Jewish Sabbath (transcripts attached). It was made clear to the candidate by the JSC panellist that observance of the Sabbath would be problematic for his appointment. This overtly prejudicial statement runs contrary to the basic constitutional principles in our country of protecting our citizen’s rights to practice their religion without fear or discrimination. Religious freedom has always been a cornerstone of our democracy.

It should also be noted that no other candidate was questioned on their religious practices, except those of the Jewish faith. Christian candidates were not asked about working on Christmas, nor were Muslim candidates asked about working on Friday afternoons or Eid. It is appalling to think that the JSC, which is mandated to recommend judges to the highest courts, would countenance one of their panellists asking a question that is so problematic in terms of religious rights and so obviously discriminatory. 

It is also extremely disturbing that questions posed to both Advocate Lever and Judge Unterhalter, focused extensively on their possible association with the South African Jewish Board of Deputies (SAJBD). Nearly all Jews in South Africa have some association with the SAJBD, be it through our affiliate organisations, which include schools, synagogues, youth organisations, women organisations and others. This is because the SAJBD is the representative democratically elected body of SA Jewry (regardless of their political or religious affiliation) with a mandate to protect the civil and religious rights of the community, and fight against antisemitism.

One wonders why a body mandated with the objective of protecting constitutionally sound principles of religious freedom and fighting hate would be so objectionable to members of the JSC panel? It is an anathema that it would be problematic for a potential juror to be associated with a body that upholds the values of our constitution in protecting a minority community against hatred and discrimination. Ironically in doing so, it is members of the JSC that our community should now be concerned about. Our constitution clearly states in Section 31 (i) b that “persons belonging to a cultural religious or linguistic community may not be denied the rights, with other members of the community to form join and maintain cultural, religious and linguistic associations and other organs of civil society”. Yet Jewish Judges appear to be denied that same right. 

Equally concerning were questions posed to the two Jewish candidates regarding the Palestinian-Israeli conflict. Both were questioned on their views and stance on the Two State Solution. It is difficult to understand how a conflict of this nature has intruded into this forum. No Muslim candidates were likewise questioned on the Palestinian- Israeli issue. Yet both Jewish candidates were the only ones quizzed on international disputes. 

Our country’s Freedom Charter as well as in the preamble to our constitution it clearly states, “South Africa belongs to all who live in it, united in our diversity”. From the questions asked at the JSC interviews this month to Jewish candidates, one would question whether this applies equally to members of the Jewish community or whether those bent on pursuing an antisemitic agenda are beginning to unduly influence key decision making bodies. 

Twenty seven years ago we heralded in our constitutional democracy. Tomorrow, as we celebrate Freedom Day, we call on all South Africans to stand up and protect these constitutional values and reject all forms of discrimination. 

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Extract from the JSC interview with Judge David Unterhalter, 13 April 2021

1. L B Sigogo

There are comments from law bodies. I am quite sure you saw the comments from the Black Lawyers Association

Judge Unterhalter

Yes I did.

LB Sigogo

And in response to that you withdrew or you resigned from the South African Board of Deputies. But the comment of the BLA in that regard went further and indicated that his affiliation as defined above might even go so far as to put into question his sense of justice. I wanted to talk to that taking into account the views we have as the country in respect of the relationship between Palestine and Israel.

Judge Unterhalter

Yes well let me firstly explain what the Jewish Board of Deputies is and then I will explain why I resigned responsively to what the BLA had to say. I was asked in the course of last year when we were in the middle of a pandemic to come onto the Board. You should understand that the Jewish Board of Deputies is concerned with the welfare of the Jewish community and by welfare it is concerned with old aged homes, burial societies, its concerned with people who have fallen on hard times more generally but particularly now in the pandemic and assisting other communities where there is need and hardship.

So the Jewish Board of Deputies is a community organisation concerned with Jewish welfare and the welfare of other communities within the country. And its other concern is about antisemitism and preventing antisemitism. It is not a body that is concerned to promote Zionism. The Jewish Board of Deputies is a body that has existed for well in excess of a hundred years and it precursor organisations for many many decades before that. And so I went onto it because it seemed to me to be about assisting to the extent I could with welfare issues for communities in sometimes very dire need. And I don’t therefore think that it is concerned to promote Zionism.

There are other organisations that do so but I have no affiliation or connection to them. But I did think that when the BLA raised the point, they’d raised an issue which I did need to think about and it’s this: That from time to time the Jewish Board of Deputies engages in litigation against hate speech concerning antisemitism. And on occasion those matters have even gone to the Constitutional Court.

And it did seem to me that in those circumstances, if I was going to offer myself as a candidate for judicial office in the Constitutional Court it would be appropriate to step away from that organisation because it does have this role. And whatever I might have been able to do by way of assisting welfare efforts in the time of great need must perhaps yield to the perception that one shouldn’t be connected to a body that is engaged in litigation. So I did step down and I’ve circulated my letter of resignation but I don’t think that my connection in accepting a position with the Jewish Board of Deputies is one that impacts and is connected to the Palestinian and Israeli conflict which is an entirely separate matter.

LB Sogogo

If that is the position why then did you resign before you could hear the outcome of these interviews because if it is a welfare organisation which you resigned because you don’t want to be sitting at the constitutional court if and when they litigate then why don’t you wait for your appointment and if there is these issues were of no concern to you regarding Zionism.

Judge Unterhalter

Well as I say I don’t say that the BLA’s concerns were of no concern to me. They were of concern for me for a reason different from the ones that the BLA raised. I did so in stepping down because it seemed to me that whether I am ultimately recommended for office in the Constitutional Court or not, the question of a body that does litigate over questions of antisemitism and hate speech and the like, perhaps it would be better for a judge not to be part of that organisation, whether on the constitutional court or otherwise. I mean obviously one could always recuse oneself and the like, but perceptions matter. Once the issue was raised I gave it thought and that seemed to me to be the wise position to take.

2. Minister Lamola

Don’t you think that your affiliation or being a former or ex leader of the Jewish Board of Deputies may raise these possibilities of bias when issues related to the State of Israel or Palestine arise in our court?

Judge Unterhalter

Minister I don’t think so. And I don’t think so for the reason I have already given which is that the Jewish community which has been long established in this country for centuries in different forms and are made up of people with very very different attitudes to the State of Israel and indeed to the state of the conflict between Israel and Palestine. So there is nothing about being on the Jewish Board of Deputies which would lead in my view to a perception that I would have any bias in favour of Israel in respect of a legal issue that may arise in a case that somehow trenched upon the conflict that exists in that part of the world. But if a case were brought and it could be shown that somehow or another my position for, I don’t know how long it has been, for nine months I suppose on the Jewish Board of Deputies is somehow or another implicated in the litigation then as with any other case I would look at the merits and have to decide whether I should recuse myself. But I can’t see, given what the Jewish Board of Deputies does and what its constitution requires it to do that there is any linkage to the Israeli Palestinian conflict.

3.       Advocate Mpofu

The one is the issue of the South African Jewish Board of Deputies. Like Commissioner Sigogo when I read the evolution of the BLA complaint and your resignation and so on I was left with the question, if there was nothing wrong with this then why did you resign and you’ve answered that question.

My issue with this is more a question of principle. Which has to do with the connection, you may or not accept that there is a connection that is made between Zionism and Apartheid in many contexts both are forms of Nationalism and so on. I am sure you are familiar with that debate.

Now the question the impression that I have that the Jewish Board of Deputies might not be by definition a Zionist Organisation, I don’t know if it is but that it’s not against Zionism, there is some affinity or close relationship between the two organisations. And if that is so and if this premise is correct, you can tell me if it is not, then my view would be that just as anybody who has an association with Apartheid cannot at the same time believe in a constitution that espouses equality. That’s obvious.

So if that connection is therefore correct, can the same be said about an organisation that has some relationship with Zionism being by definition inherently irreconcilable with the notion of equality between people. Do you understand the question?

Judge Unterhalter

I understand the question completely. I would simply answer on that score that I never went onto the Jewish Board of Deputies in any understanding that it was connected to Zionism or an advocate for it. The Jewish community like many communities is made up of people with radically different views about the Israel and the Israeli Palestinian debate and indeed whether there is…. and you know there is a great debate about Zionism and the Israeli State being an agent of something akin to Apartheid. I mean that is a debate. Because members of the Jewish community are so varied in their views across the board on this point, I would have been very uncomfortable to be in an organisation that took some particular position on that issue.

And so I went, I was invited to join at a time of such crisis for many communities and my role as I understood it was to see if I could help in any way with the basic roles that the Jewish Board plays which is to look after the welfare of people who have lost sometimes their lives and sometimes their livelihoods and the connection it has to other communities where similar problems arise. I saw it as being able to do something for welfare and as I say, the Jewish Board of Deputies has a history that goes back… The Current board as I recall goes back to 1913 [ corrected 1912]. But the members that constitute it at a national level after union, go back probably a century before that. Long before Israel was even conceived of as a country. So I think it has a limited focus and it was with that in mind that I accepted the position that I did.

Advocate Mpofu

For the record, I am not one of those people who equate Jewishness with Zionism. Cos I think that in itself is a form of discrimination. It’s like stereotyping people which is unfair. But my focus is really on the organisation. I think there is an organisational link between the Jewish Board of Deputies and their views in general.

Commissioner (Unclear)

One question from my side which was obviously prompted by your resignation from the Jewish Board, it prompted me to get a sense of your views on a two state solution to the Palestinian Israeli conflict. You will remember that in 1993 the PLO and the Israeli government entered into an agreement, the Oslo accord so I’m not so concerned about your resignation or membership that is not an issue. The issue is as a country how do we relate to our neighbours or to the international global community. The entry point is African obviously. What is your view on the conflict? What is your view on the two state solution?

Judge Unterhalter

Yes. My position on that is that I consider that a two state solution, although it is now unfortunately one that enjoys less currency than it did in decades gone by, remains the only solution that I think is both feasible but just, in what is a hugely complicated and difficult conflict that exists. So I take the view that there must be a two state solution and that people of good will should try to find each other to bring that about in a fair way.

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Extract from the JSC Interview with Advocate Lawrence Lever:

1. Commissioner Madonsela

I see that you have also stated in your CV that you are Jewish.

Advocate Lever

Yes that is correct

Commissioner Madonsela

I just wanted to find out that you are not a member of the Jewish Board of Deputies?

Advocate Lever

I was not elected to that body no.

2. Commissioner Dodovu (name unclear)

In regards to the Board of Deputies you say you were never elected into a position of power in that body. Where you ever a member of the Jewish Board of Deputies?

Advocate Lever

I don’t believe it works like that. I haven’t held myself available to be a member and I haven’t ever been a member. I think the Jewish Board of Deputies is a broad body that represents several different Jewish organisations, including…

People in the Jewish faith are like any in other faith, there are people who interpret it very liberally and some who interpret it very traditionally and very strictly. So as I understand it and I must say I don’t have contact with the body directly is that I understand that the Jewish Board of Deputies represents all of those bodies.

Commmissioner Dodovu

I mean any body that is affiliated to them?

Advocate Lever

No I’m not a member of any body that is affiliated to them formally.

3.  Commissioner Mmoiemang

What is your view on the two state solution on the Israel Palestine conflict?

Advocate Lever

It is the only practical solution and I fully support it.

4. Glynnis Breytenbach

Like you I am Jewish and I’m not even mildly ashamed of it. In fact I’m quite proud of it.

Advocate Lever

I am not at all ashamed at all and I don’t deny my religious identity, not at all.

Glynnis Breytenbach

Good for you. So there are thousands of Jews in South Africa. Very few who are members of the Jewish Board of Deputies. That is not my question.

The question is this. Women in the judiciary and in the legal profession in general are held to a different standard, a higher standard if you will. Have you, iIn your experience have you found that applies to Jews as well?

Advocate Lever

That is a bit of an unexpected question and I must say I am trying to think of an experience. As far as professional work goes I haven’t experienced that. But you know prejudice takes many forms and I’m not sure if your question is leading to that. I haven’t experienced I must say in my professional work being held to a higher standard or because of my religious affiliation

5.       Commissioner Madonsela

Do you keep the Sabbath? In other words do you not do any work on the Saturday? Do you think that will impact your… If you are given, for instance an urgent application on the Sabbath would you take it on?

Sorry I’m asking this question because I’m also Seventh Day Adventist and I also keep the Sabbath.

Advocate Lever

I must confess that I am not an Observant Jew in the sense that I strictly adhere to keeping the Sabbath. Obviously we all interpret our religion in our own personal way. But I’ve taken each and every urgent application that has ever been allocated to me whether it is at 2 in the morning on a Saturday or on any of the Jewish High Holy Days because that would be my commitment and I take that seriously.

And I don’t deserve any special treatment. I am sure Seventh Day Adventist judges and other religious Muslim judges, are faced with similar challenges but you make a commitment and that’s the way I see it. If an urgent application comes at an inconvenient time, well then so be it. I must just deal with it.

Commissioner Madonsela

Thank you Chief Justice reasonable accommodation.

ENDS

Issued by Wendy Kahn, National Director, SAJBD, 26 April 2021