Chief rabbi calls JSC questioning ‘racist and antisemitic’

Chief Rabbi Dr Warren Goldstein this week was appalled at the “conduct of the commissioners of the Judicial Service Commission [JSC] in their questioning of two Jewish judges [over the past weeks]”. He described it as “racist and antisemitic in effect, if not in intention”.

Judge David Unterhalter was grilled about his short association with the South African Jewish Board of Deputies (SAJBD) and his views on the Israeli-Palestinian conflict in his interview with the JSC. He was being interviewed for a position on the Constitutional Court. Similar queries were directed at judicial candidate Advocate Lawrence Lever who is standing for a position in the Northern Cape, including if he observed Shabbat.

“The Jewish candidates were the only ones subjected to questions relating to religious identity and practice,” said the chief rabbi. “The direct implication of their questions was that a Jewish judge who is a Zionist or observes Shabbat would be disqualified from holding high judicial office.

“This violates the letter and spirit of our Constitution. It’s morally and legally repugnant for officers of the JSC to discriminate against any candidate on the basis of their religious identity. They should all be ashamed of themselves,” the chief rabbi said.

He called on JSC commissioners including the minister of justice to retract and apologise for their comments. “And I also call on President Cyril Ramaphosa to return the list to the JSC as the Constitution allows him to do on the grounds that aspects of the hearing exhibited discriminatory questions which cast a shadow on their entire process. Racist conduct can never be condoned,” Goldstein said.

The SAJBD also described the JSC’s questioning of both men as “discriminatory and anti-constitutional”.

“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,” said SAJBD National Director Wendy Kahn. “Advocate Lever was asked about his level of religious observance, specifically whether he observes Shabbat. It was made clear that this observance would be problematic for his appointment.

“It should also be noted that no other candidate was questioned on their religious practices, except those of the Jewish faith. Christian candidates weren’t asked about working on Christmas, nor were Muslim candidates asked about working on Friday afternoons or Eid,” said Kahn. “It’s also extremely disturbing that questions posed to both Advocate Lever and Judge Unterhalter focused extensively on their possible association with the Board. Nearly all Jews in South Africa have some association with [it]. One wonders why a body mandated with protecting constitutionally sound principles of religious freedom and fighting hate would be so objectionable to members of the JSC panel,” she asked rhetorically.

“Equally concerning were questions posed to the two Jewish candidates regarding the Israeli-Palestinian conflict,” said Kahn. “Both were questioned on their stance on the two-state solution. It’s difficult to understand how a conflict of this nature has intruded into this forum. No Muslim candidates were questioned on the issue.

“From the questions Jewish candidates were asked at the JSC interviews this month, one would question whether those bent on pursuing an antisemitic agenda are beginning to influence key decision-making bodies unduly. We call on all South Africans to stand up and protect these constitutional values, and reject all forms of discrimination.”

Rabbi Greg Alexander, the co-chairperson at the South African Centre for Religious Equality and Diversity (SACRED), didn’t hold back on his opinion of the interviews. “There is little doubt that there was flagrant discrimination at the recent JSC hearings. This is specifically concerning the two Jewish candidates being interviewed.”

“Had such religious or cultural questions been asked of others of another faith, it would undoubtedly have sounded an alarm and disgusted those observing,” said SACRED co-chairperson Rabbi Julia Margolis. “However, we now face a doubly-disgusting situation in that such questions arose in the first place, and secondly, that only one religion, faith, or culture appears to have been deliberately targeted.

“This suggests that the very foundation of South Africa’s democracy is under threat, and one cannot help recalling the late Nelson Mandela’s voice: ‘I have fought against white domination, and I will fight against black domination.’ The determination of the late, great statesman to fight for absolute equality and against discrimination of any kind should be brought front and centre at this time. Those who raise such blatantly discriminating questions should be publicly shamed for doing so.”

“There does appear to be some prejudice in the questioning from the JSC,” said Mark Oppenheimer, an advocate at the Johannesburg Bar. To question a Jewish advocate about their observation of the Sabbath “is a weird thing to ask, given that there have been many Jews on the courts over the years, and you wouldn’t ask a Christian whether they could do their job given that they might go to church on Sunday, or a Muslim who needs to go to prayers on a Friday. So there is either antisemitism or anti-Zionism, or a great deal of ignorance. With Judge Unterhalter, it’s unclear if this was an excuse to try and block him, or whether it was the reason he wasn’t nominated further.”

Writing in Business Live, Tony Leon, the former leader of the opposition, said, “In the dismissal of Unterhalter’s claims for judicial advancement, his membership of the ‘suspect class’ of his race was fused with his religious affiliation. Thus, the JSC interviewers gave little airtime to Unterhalter’s credentials, which include being the first South African ever appointed to the appellate body of the World Trade Organisation, where he served as chairperson for two years.

“Courtesy of a bile-ridden tissue of vitriol against him authored by the Qatar-funded Boycott, Disinvest and Sanction outfit, Unterhalter landed up spending much of his time offering his views on Zionism (not in the remit of the court) and his one-time membership of the South African Jewish Board of Deputies,” continued Leon. “According to BDS, the century-old Board, whose leadership is democratically and transparently elected, is akin to the Broederbond. Mere membership of this community body rendered Unterhalter unfit for higher judicial office in the view of BDS, a matter the JSC seemed to endorse.”

The JSC recommended Lever for a vacant judge’s position in the Northern Cape. It also recommended lawyer Norman Manoim for a vacancy on the Gauteng High Court bench. Both are to be referred to President Cyril Ramaphosa for appointment. Meanwhile, the Council for the Advancement of the South African Constitution is reportedly considering legal options regarding the recent interviews by the JSC for candidates for appointment to the Constitutional Court.

Speaking to the SA Jewish Report, Manoim said, “It’s a great honour to be able to serve. I’ve been in public service for a long time – on the Competition Tribunal for 20 years as a public regulator – and I wanted to be able to continue serving.”

As a human rights lawyer before 1994, Manoim said he hoped to bring “the perspective of a lawyer who has worked with and without a Constitution”. He also wants to emphasise the importance of institutions in society. “We as a country must ensure our institutions work properly and independently, and we must work to protect them,” he said.

He said it was important for people who had the opportunity to serve in public office, to do so. “It’s easy to criticise society – and we do have many problems. But we must get our hands dirty and contribute towards solutions. As an optimist, I think we can solve our problems – we always have. So we must put ourselves in whatever role we can be useful in. This community has people with a wide range of skills and talents. We must get involved in whatever sphere we can to make a real difference.”