After the Judicial Services Commission (JSC)  interviews with Judge David Unterhalter and Lawrence Lever SC,  the South African Jewish Board of Deputies (SAJBD) addressed a letter to the  JSC alleging that the comments and questioning by the commissioners made to these two applicants were repugnant, discriminatory and anti-constitutional. It alleged that the two candidates were subjected to questions pertaining to their Jewish identity while no other candidates were subjected to offensive religious scrutiny.

In order for the SAJBD to have levelled such allegations it would have had to rely on the  Constitutional provisions against unfair discrimination (directly or indirectly) against anyone on    religious and cultural grounds and also a right to join, belong  and maintain an association with  a cultural or religious community.  It would also have had to rely on the  anti-Semitic canards such as employing sinister stereotypes and negative character traits, making stereotypical allegations about Jews and their loyalties; that the existence of a State of Israel is a racist endeavour; and applying double standards to the applicants which would not expected or demanded of any other applicant;

The JSC has now issued an unsigned press release to the SAJBD’s alleging that (i) the SAJBD’s statement is factually inaccurate, and it had quoted selectively (ii) its Commissioners were not allowed to ask discriminatory and anti-constitutional questions”(sic) (iii) other candidates, amongst them Adv. De Villiers SC, Adv. Mancgu-Lockwood and Mr Thulare  were asked questions relating to their religious beliefs and ( iv) “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.”

While it is no doubt true that the SAJBD did quote selectively, the selectivity would have been related to the offensive religious/affiliation aspect of the interview. The JSC does not in any way suggest that the quotes are inaccurate or that they have been quoted out of context.

With the two bodies providing conflicting opinions, one needs to look at what was said by the commissioners at the interview.

In the interview with Judge Unterhalter there were five commissioners who asked questions about Unterhalter’s religious / cultural affiliation. The first commissioner, Sigogo,  referred to a letter from the Black Lawyers Association (BLA) which addressed the need for Unterhalter to resign from the SAJBD. Unterhalter explained the nature of the SAJBD as looking after the interests of Jews in South Africa. Sigogo suggested that if the nature of the SAJBD was so innocent, then Unterhalter would not have resigned from it. A second commissioner, Mmoiemang, asked Unterhalter about a “two-state solution” to the Israel-Palestine question.  A third Commissioner, Notyesi, asked him why he shouldn’t take a cooling off period because of his stint on the Jewish Board. A fourth commissioner,  Mpofu, then linked Zionism with Apartheid and asked for comment about whether organisations that supported Zionism should be viewed as supporting equality. A fifth commissioner, Lamola, the country’s Minister of Justice, also addressed Unterhalter as being “the leader of a Jewish organisation.”

For five separate commissioners all  to pose direct questions on religious affiliation, membership of  Jewish organisations, questions on the Middle East’s political solutions as well as issues on Zionism in one interview is exceptional. The fact that these barbed questions were all inappropriate and were totally irrelevant to the position for which the candidate applied, but were pointedly directed at a candidate who happened to be Jewish, cannot be mere co-incidence. The questions could only have been posed because the candidate was Jewish. The candidate was racially stereo-typed  and questioned accordingly. Questions were addressed to a stereo-type, not a candidate. Questions of this nature were not put to any other non-Jewish applicant.

Advocate Lever SC, who had been an acting judge for five years, was asked whether the observance of the Sabbath would interfere with his duties as a judge.

The JSC referred to questions posed to the other applicants, defending itself against offensive religious scrutiny.  Advocate De Villiers raised the issue of his church activities and how his church was anti-Apartheid-active, with their doyen being Rev Beyers Naude. In response he was  asked a single question about him and his church’s association with the great man. Advocate Mancgu-Lockwood was asked about her church-going habits and whether she was “ecclesiastical” or “evangelical”. Magistrate Thulare was asked two questions about his article in a Christian lifestyle book, as a judgment which sought to unite the Presbyterian Church which had been taken on appeal, and  there was a possible conflict of interest between his religious attitude and his  legal work, when dealing with  church issues. 

Out of 79 applicants, five were asked “religious” questions. The questions posed to the three non-Jews were either relevant or substantially innocuous. Only the questions asked to the two Jewish applicants can only be viewed as “religiously offensive”. In these circumstances, the only reasonable inference to be drawn is that the JSC’s conduct was nothing other than an unconstitutional double-standard and anti-Semitic.

The JSC’s bald denial and statement that it does not allow its commissioners to ask discriminatory and “anti-constitutional” questions does not explain: Why a Commissioner unconstitutionally addressed a letter calling for the resignation from a Jewish cultural/civil organisation; Why irrelevant questions about the Middle East peace plan were asked specifically to a Jewish applicant but no other non-Jewish applicant, and why such conduct should not be viewed as an anti-Semitic, unconstitutional double standard; Why it is not anti-Semitic to ask a person to take a “cooling off-period” after serving in a Jewish organisation; How is it not discriminatory and anti-constitutional to make a racist link between Zionism and racism and then ask a Jew about consequences when no other non-Jewish applicant was asked about this. And why the gratuitous (and inaccurate) reference to a Jew being “the leader of a Jewish organisation” has any place in such an interview. The explanation that Lever was recommended for the post of permanent judge, does not explain the most blatant unconstitutional question asked about him because of his religion, before the recommendation was made.

But the JSC, as a quasi-judicial body, materially failed to consider relevant issues and misdirected itself in failing to address to the allegations levelled against it.  Apart from having wrongly accused the SAJBD of lying, it added in its response that  “Zionism … is viewed as a discriminatory form of nationalism”. The JSC, as a quasi-judicial body, is obliged to make an inquiry into fact and law before it, before coming to a decision. There was no evidence before it dealing the nature of Zionism, nor did this issue have any bearing on the issue that was before it. By its response, the JSC displayed an unacceptable degree of bias, far exceeding the limits of impartiality expected, or indeed permitted, by a quasi-judicial body. Its mere utterance  of Zionism being a discriminatory form of nationalism should be viewed as racist and unconstitutional.

So the allegation that the JSC was religiously offensive, anti-Semitic and  it constitutionally invaded the rights of these two Jewish candidates has not been refuted by its response. The allegation that the SAJBD’s complaint that the candidates were subject to offensive religious scrutiny was factually untrue  was merely deflected, and never properly addressed. The JSC’s outrageous and gratuitous allegation that  Zionism is viewed as a discriminatory form of nationalism is irregular and irrational. The JSC – the body  that recommends the appointment of our judges – clearly made a finding  improperly, without evidence and acted ultra vires its function as a quasi-judicial body. Its conduct towards the two Jewish Applicants must surely  also be seen as unconstitutional. So is the only logical conclusion that one can make, is that the JSC a deflecting, racist body? 

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Craig Snoyman

Craig Snoyman is a proud South African and practising advocate in Johannesburg.

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