Emotions run high as JSC denies discrimination

The South African Jewish Board of Deputies (SAJBD) has called for a face-to-face meeting with the Judicial Services Commission (JSC) to resolve tensions following the recent JSC interviews of Jewish judges, which the Board described as discriminatory.

The JSC this week denied that its interviews of Jewish candidates for appointment to the Bench were discriminatory and anti-constitutional. It said it was “factually incorrect” to say that Jewish applicants were targeted at interviews.

The Board told the SA Jewish Report on Wednesday, 5 May, that this week’s JSC statement was “unfortunate”.

Said National Director Wendy Kahn, “The SAJBD had already requested a meeting with the JSC prior to it issuing this statement. Notwithstanding the JSC’s denial this week that it had done anything wrong, we believe that the nature of the questions put to the candidates was irregular and discriminatory, and as such, in conflict with the fundamental constitutional right of all South Africans to equality and freedom of belief and association. It’s unfortunate to politicise such an august body.”

She said the Board continued to call for a face-to-face meeting with the JSC as it believed it was a “more constructive way” to address issues than through the media.

In recent weeks, the SAJBD accused the JSC of targeting Advocate Lawrence Lever and Judge David Unterhalter when they were asked questions about their Jewish identity and practice. It also described the JSC’s questioning of both men as “discriminatory and anti-constitutional”.

In a statement last week, Kahn said, “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 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 practice 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. It’s also extremely disturbing that questions posed to both Advocate Lever and Judge Unterhalter focused extensively on their possible association with the Board.

“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.”

In response, the JSC said this Tuesday that the SAJBD was selectively quoting parts of the interviews.

It rejected claims that no other candidate was questioned on their religious practices except those of the Jewish faith. It also labelled the claims by the SAJBD as factually inaccurate.

“The questions relating to the association with the SAJBD dealt with concerns that the organisation supports Zionism which is viewed as a discriminatory form of nationalism and potentially in conflict with the values contained in the South African Constitution,” read the statement.

“The questions on this score were raised with the two candidates following letters of objection received by the JSC in respect of Judge Unterhalter from various organisations, including the Black Lawyers Association. This is part of JSC practice intended to afford candidates the opportunity to respond to objections lodged against their candidature.”

The statement continued, “It’s not factually correct that other candidates who aren’t of Jewish descent weren’t asked questions related to their religious affiliations.” There were other candidates who were asked questions relating to their religious or cultural beliefs, the statement said.

Said Advocate Mark Oppenheimer, “After watching Judge Unterhalter’s interview, it’s striking how many questions were about his brief stint at the SAJBD and how few questions were about his qualifications. The ratio indicates a failure on the JSC’s behalf to ask pertinent questions about his ability to hold judicial office. The volume and repetition of questions about the Board should be of concern to all South Africans who care about the important attributes of those who take up office at the highest court in the land.”

Chief Rabbi Dr Warren Goldstein expressed outrage at the “conduct of the commissioners of the [JSC] in their questioning of the two Jewish judges”, describing it as “racist and antisemitic in effect, if not in intention”.

He called on JSC commissioners to retract and apologise for their comments. He also called 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 the entire process.

The JSC recommended Lever for a vacant position in the Northern Cape. The JSC also recommended lawyer Norman Manoim for a vacancy on the Gauteng High Court Bench. Both have been referred to President Cyril Ramaphosa for appointment. Unterhalter didn’t make the final list of nominees.

Meanwhile, the Council for the Advancement of the South African Constitution is reportedly considering legal options regarding the recent interviews by the JSC for appointment to the Constitutional Court.