Dei'ah veDibur - Information & Insight

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28 Tishrei 5765 - October 13, 2004 | Mordecai Plaut, director Published Weekly









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Shema Yisrael Torah Network











South African Court Upholds Beis Din Cheirem
by Yated Ne'eman Staff

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.


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