In a groundbreaking court case, the South African High Court
authority has upheld the authority of the South African Beth
Din to enforce discipline within the Jewish community.
Just before Rosh Hashana, the Johannesburg High Court
dismissed with costs an application by a Johannesburg Jewish
businessman for interdictory relief seeking "to restrain the
Beth Din from publishing or participating in the publication
or dissemination" of a notice declaring him to be in
cherem. The applicant's arguments were based inter
alia on the alleged premise that placing him in cherem
was an infringement of his constitutional right to
freedom of religion. The case, because of its unprecedented
nature and its potentially far-reaching implications with
regard to the application of Jewish law in Diaspora
societies, elicited interest far beyond the confines of South
Africa.
In issuing his ruling, Mr. Justice Frans Malan described
cherem as "an expression of communal disdain" directed
at a person whose conduct was "not in full compliance with
the ethical dictates of Jewish society" and which served
notice to members of the community that such conduct was
unacceptable. Its aim was not simply punitive, but was also
"directed to encourage a person who wished to be part of the
religious community to obey the mandate of Jewish law and
ethics and to encourage him to return to the community."
Judge Malan said that as a professed practicing member of the
Orthodox Jewish community, the applicant was "required to
comply fully with the dictates of Jewish society and the
mandates of Jewish law and ethics." He was, moreover,
required to observe community standards and disciplines, and
one such obligation involved "the submission to the
jurisdiction of the Beth Din and the obligation to accept the
state of cherem."
Judge Malan described as "without foundation" the suggestion
that `excommunication' was not central to the practice of
Judaism and further rejected the contention that there may
have been bias or bad faith on the part of the Beth Din.
Referring to the Beth Din hearing of 24 November 2003, he
noted that, on the contrary, this had been conducted with
regard to whatever rights the applicant may have had. The
applicant had explicitly undertaken to abide by the Beth
Din's ruling with regard to maintenance payments for his
former wife, but had then repeatedly refused to abide by that
ruling. The judge ruled that since the Beth Din had been duty
bound to act as it did, since the applicant consensually
submitted to the discipline of the Jewish faith and its
procedures, he had to abide by it.
Counsel for the applicant argued that cherem
constituted a "defamation bomb," that would render their
client a pariah in his religious and cultural community.
Amongst other things, he would be damned before his death by
having his soul "doomed to exclusion from a Jewish cemetery
and a Jewish burial" and would "suffer extreme humiliation
and ostracism" from which he would be unable to protect his
children.
However, Judge Malan agreed with the respondent that the
effect of this particular cherem ruling had been
exaggerated. Despite the curtailment of certain privileges,
such as being counted in a minyan and being called up
to the Torah, it did not prevent the applicant from observing
the precepts of the Jewish faith, from educating his children
in the Jewish religion or from attending synagogue either
alone or with them. It was clear that cherem amounted
to a "shunning" and an infringement of some of the
applicant's "rights of personality," but this discrimination,
Judge Malan concluded, was justified in terms of the
Constitution. It was, further, not appropriate for the
secular courts to intervene in such a matter:
"It appears reasonable and justifiable to limit the
applicant's rights, because a failure to do so will have the
result that the Jewish faith and community will not be able
to protect the integrity of Jewish law and custom in this
case by ensuring conformity therewith. Moreover, it will be
offensive to observant Orthodox Jews to be forced to
associate with a person seen by them as deliberately and
provocatively flouting Jewish law, custom and authority. To
question whether the proposed cherem or a lesser
sanction would have been appropriate would be to interfere in
matters of faith, and arrogate to the court a power not
constitutionally provided for: the threshold for intervention
is and should be high," the judge said.
Rosh Beth Din Rabbi Moshe Kurtstag described the outcome as
"a big victory, not just for our Jewish community, but for
Jewish communities around the world as well." He said he had
been confident that the Beth Din would prevail since it had
not been motivated by any kind of self-interest but by the
desire to uphold Jewish law and the rights of the Jewish
community. He warmly praised the Beth Din's legal team,
saying that the unsparing time and effort they had devoted to
the case had gone beyond the call of duty. This, together
with the overwhelming support shown by the broader Jewish
community, had been a tremendous Kiddush Hashem.
Rabbi Kurtstag said he had felt particularly strongly about
the Beth Din taking a strong stand in this matter because of
another, similar case concerning an estranged couple in New
York which with he had been associated. In this case, after
the recalcitrant husband had refused to attend two hearings
it had convened, the Beth Din had warned that he would be put
in cherem if he did not attend the third. The man then
threatened legal action if the Beth Din did not stop
"harassing" him, and the latter, after it became clear that
the wife would not support its case in court, shied away from
the issue. Rabbi Kurtstag said he had been determined that
such a thing should not be allowed to happen in South
Africa.
Chief Rabbi Harris said that, from his perspective, the case
and its successful outcome had helped to boost the standing
of the Beth Din in the eyes of the greater community.
