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A critical look at why the Nation-State Law is unwelcome

The introduction of the Basic Law on Israel as the Nation-State of the Jewish People prompted widespread controversy for good reason.

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JUDGE DENNIS DAVIS

The problem with the new legislation is best illustrated by a petition brought before the court by members of the Druze community. They argue that this Act violates their basic rights, such as a right to equality, and deems that non-Jewish minorities have little status in Israel.

In their petition, they contend that not only does the law define the role of the State with an emphasis on its Jewishness, but it “enshrines the collective rights of the Jewish majority”.

The Arab minority, which constitutes 20% of Israel’s citizens, receives no recognition at all of its collective rights. And beyond that, “it does not even win recognition as a minority in Israel”, according to the petition.

There is also an argument that the clause that encourages the establishment of communities for Jews only contravenes previous High Court rulings. Particular reference is made to a decision in 2000 of Ka’adan versus The Israel Lands Administration. In this case, five judges decided that the State could not allocate land to entities which established communities for Jews only.

The fact that the High Court is unlikely to strike down a Basic Law is beside the point. The key question concerns the contents of this legislation and its implications for Israel going forward.

Prime Minister Benjamin Netanyahu has argued that “in the Israeli democracy we will continue to protect the rights of both the individual and group; this is guaranteed, but the majority has rights too and the majority rules”.

Majority rule is not unqualified.

Readers who understand South African democracy well know that our Constitution places certain basic rights beyond the reach of the majority.

While Israel does not have a written Constitution, various basic laws hold legal implications beyond that of ordinary legislation. Central to the idea of a constitution, and even a basic law, is that certain rights are placed beyond the reach of a majority.

If the argument that the majority rules applied in South Africa on a simple majority, then Section 25 of our Constitution, the property clause, would probably be repealed. So would many other protections granted to a range of minority communities.

The rights of dignity, equality and freedom should not be placed at the mercy of a transient majority. It is instructive that this legislation was passed by a small majority.

A more than 20% minority group now finds its language, which prior to this legislation was an official language, is downgraded to a more ambiguous “special status”.

This clearly fuels legitimate perceptions of a discriminatory practice. So does this clause: “The State sees the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.”

In effect, this promises a group areas system in which Jewish settlement will take place, to the exclusion of other communities who claim to be citizens of the country.

Doubtless, these groups will also feel that the provision that the Hebrew calendar is the official calendar of the State – although the Gregorian calendar will still have official status – reflects a clear change in emphasis of the country’s political practice. In a global world, one might ask what purpose is served by this change.

Since its creation, Israel has grappled with seeking to achieve a balance between being the homeland of the Jewish people and a democracy.

In broad terms, this reflects the core tension between the universalism and particularism within Judaism.

This new legislation puts an end to the argument. The democratic component has given way to the hegemony of the Jewish element.

Israel’s founders desired to create a democracy in which all who lived in the country would be recognised as full citizens, whether Jewish or Arab. By so firmly rejecting any attempt to reconcile both elements, Israel has now set itself upon a path in which it would be far more difficult to claim that it is truly a democratic State. That is the tragedy of this legislation.

To those who, doubtless, will attack critics of the legislation, it should be remembered that the law passed by 62 votes to 55. There is a very significant body of Israeli citizens who wish to live in a democratic State.

Sadly, this wish is unlikely to be fulfilled as long as this legislation continues to operate. And with it, an increasing criticism will draw closer analogies between Israel post this law and apartheid South Africa.

  • One of South Africa’s most respected legal minds, Judge Dennis Davis was appointed to a personal chair of Commercial Law in 1989. In 1998 he became a Judge of the High Court, and the President of the Competition Appeal Court in 2000. In 2013, Davis headed a committee that was appointed to review South Africa’s tax policy framework.

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SA warmly welcomes Palestinian foreign minister

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Minister of International Relations and Cooperation Dr Naledi Pandor, warmly welcomed the Minister of Foreign Affairs and Expatriates of the State of Palestine Dr Riad Malki to South Africa last week – hospitality certainly not offered to Israelis.

Malki was in the country from 7 to 9 October, and was hosted by Pandor on 8 October for bilateral talks, according to a media statement made by department of international relations and cooperation spokesperson Clayson Monyela.

In reiterating their commitment to each other’s causes, “both sides agreed to exert joint efforts aimed at reversing the decision to admit Israel as an observer member to the African Union”, according to a joint post-talks communiqué. The ministers also agreed to a planned a state visit in which South Africa would host Palestinian President Mahmoud Abbas.

South Africa is also going to host a conference for Palestinian heads of missions in Africa this year to deliberate Palestine’s policy towards Africa.

“South Africa attaches great importance to its relationship with Palestine, which is underpinned by historic bonds of solidarity, friendship, and co-operation. South Africa’s support for the Palestinian cause conforms with the basic tenets of its foreign policy,” Monyela said.

“The international community has an obligation to find a comprehensive and just resolution to the Palestinian issue,” he said. “South Africa calls for international support and increased efforts for the just cause of the Palestinian people to address their legitimate demand for an independent state alongside a peaceful state of Israel. The visit aims to further strengthen the relationship between South Africa and Palestine.”

In their joint communiqué, the ministers “expressed their satisfaction with the cordial relations that exist between the two countries, which is to be further augmented by Abbas’s visit and the Palestinian leaders’ conference to be held in Cape Town in November this year”.

The South African government committed its support for initiatives that would refocus the international agenda on Palestine and the Middle East peace process. South Africa reiterated its support for a two-state solution and the establishment of a Palestinian state, with East Jerusalem as its capital.

The two ministers agreed that “they would continue to work to achieve peace for the Palestinian people”, and “in the absence of sustainable peace in the region, there could be no global peace, stability, and economic prosperity”.

In their communiqué, the ministers insisted that “security and stability in the Middle East is being undermined by continued occupation of Palestinian territories and the aggressive actions of the Israeli regime”. Having said that, they called on the international community to “further strengthen their support for the return of all parties to the negotiation table without pre-conditions”.

They agreed to “exert joint efforts aimed at reversing the decision to admit Israel as an observer member to the African Union”. They also expressed support for “the Durban Declaration and Plan of Action” which they say “remains a clarion call for anti-racism advocacy and action worldwide”.

The Durban Declaration was the document that emerged out of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, also known as the infamous “Durban Conference” held in South Africa in 2001.

According to the Embassy of the State of Palestine in South Africa Facebook page, Malki also met with a group of African National Congress leaders in Pretoria, and Boycott, Divestment, Sanctions (BDS) groups Africa4Palestine, Palestinian Solidarity Alliance, and the South African BDS Coalition, amongst other meetings.

Local political analyst Steven Gruzd says the visit shows that South Africa’s support for the Palestinians “continues to be vocal and loyal. The hot issue, however, is the granting of Israel’s observer status at the African Union. The two pledged to work together to overturn it. Relations with Israel will remain tense. There has been no change from South Africa towards the [Naftali] Bennett government.”

He says the visit “reinforces ties [with the Palestinians] and puts South Africa squarely in the Palestinian camp. It has shed all pretensions of being an ‘honest broker’ in this conflict, and for a long time, has chosen sides. The key thing to watch is what happens at the African Union. Israel has its fair share of African opponents, but also many African friends. Will they stick their necks out for Israel? We will see. South Africa has been lobbying against the [observer status] decision, and has influenced southern African states to oppose it.”

Gruzd maintains there’s “virtually no chance” of Israel’s Foreign Minister Yair Lapid being invited for a similar visit. “Relations remain tense, and South Africa won’t be seen to reward Israel for its policies and practices,” he said.

Wendy Kahn, the national director of the South African Jewish Board of Deputies (SAJBD), says, “The SAJBD believes that for South Africa to play a meaningful role towards a peaceful outcome to the Israeli-Palestinian situation, it would need to engage with both Israelis and Palestinians. Without speaking to the Israeli leadership, it’s not possible to truly understand the situation and to gain trust in order to bring the parties to the negotiating table.

“The dogged campaign by South Africa to exclude Israel from the African Union is antithetical to our international-relations policies of conflict resolution through negotiation and talking,” she says. “This action only seeks to push peace building and the attainment of a sustainable two-state solution even further away.”

“The South African Zionist Federation [SAZF] has noted the comments of Minister Pandor and Palestinian Minister Malki. It seems the entire focus of the engagement was to undermine Israel’s admission as an observer to the African Union,” says SAZF National Chairperson Rowan Polovin. “We believe this is a foolhardy and hypocritical approach to international relations.

“Israel has had a mutually beneficial relationship with African states for more than 70 years. It has been at the forefront of efforts to help solve some of the most important developmental challenges on our continent, including in the areas of health, agriculture, youth development, water, education, and energy,” Polovin says.

“The admission of Israel as an observer to the AU, alongside more than 70 other countries, is a historic and welcome development. The South African government remains out of step with the rest of the continent who are moving swiftly ahead with relations with Israel,” he says.

“The new Israeli government’s prime minister and foreign minister have been warmly welcomed in the major capitals of Europe, the United States, Africa, and the Arab world. It’s not Israel, but South Africa, that’s the odd one out. We would encourage the South African government to take the opportunity to reach out to Israel to engage for the mutual benefit of both nations and as a means of making a positive, proactive contribution to finding further peace in the region.”

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Jeweller’s senseless murder leaves community reeling

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The hearts of a Johannesburg family have been ripped apart after the senseless murder this week of well-known jeweller Mark Kopelowitz, who was shot in cold blood during an armed robbery outside his store.

Kopelowitz’s tragic death on Monday, 11 October, has sent shock waves through the community. Hundreds of people are struggling to come to terms with the untimely passing of this much-loved father of four who “lived for his family”.

“He was my everything, the absolute love of my life,” said his devastated wife, Linda, who told the SA Jewish Report she was “battling to make sense of it all”.

“I cannot believe it. I’m still waiting for him to come home,” she said.

The couple were childhood sweethearts and soulmates from the moment they met in their teens. “We went out for ten years and have been happily married for 25. How am I going to get through this?” asked Linda, who said their young son and three older daughters, one of whom writes her matric finals in two weeks, were heartbroken.

When Kopelowitz, 54, left home on that fateful Monday morning he was filled with renewed optimism about work. Earlier that morning after attending shul, he and his son, Cole, 13, made coffee for all the congregants present at the minyan. The third wave of the pandemic was over, and retail business was picking up. Tragically, Kopelowitz arrived at his Kays Family Jewellers in Centurion Mall while the armed robbery was in progress. He was fatally shot while robbers were fleeing the shop with stolen goods.

Linda received an urgent and dreaded phone call from Michael Phillips, Kopelowitz’s cousin, who was there to meet him at the store. The rest is a blur as Linda frantically hurried to be by her husband’s side.

“I got there after they had already covered his body. It was a crime scene,” she said in disbelief.

Police arrested two suspects that night in Hillbrow in connection with the robbery, and are on the hunt for a further four suspects who are still at large.

As news of Kopelowitz’ passing rippled through the community, heartfelt tributes come pouring in from close friends and family who described Mark as a “true mensch”.

He was a devoted and committed son, husband, father, and brother, described by all who knew him as “thoughtful, kind, caring, and generous to a fault”, someone who would literally give the shirt off his back.

The family are stalwarts of the Linksfield Senderwood Hebrew Congregation, with just about the entire shul present at Tuesday’s funeral. Rabbi Levi Avtzon described the family as “royalty in the community”, being one of the oldest members of the shul.

A religious and observant man, Kopelowitz attended morning and evening prayers with his son every day, and the two had recently started wearing black hats.

“Every one of us standing here felt like somebody had stuck a hand into our hearts and removed a part of it,” said Avtzon, describing Kopelowitz as “one of a kind in so many ways”.

He recalled a day when Kopelowitz stripped off his clothes to hand to a beggar who was without trousers and shoes.

“In good Mark style, he doesn’t give him money, he takes off his pants, takes off his shoes, hands it to the beggar and goes home early without pants. And it happened more than once,” he said.

There were no half measures with him, said the rabbi.

“I have never seen a father so obsessed with his kids. Each night he would come home, talk to each one of them individually, lie down with them, ask them how their day was. His biggest dream was to have naches from his children.”

Addressing Linda, he said, “He was obsessed with you, and you were obsessed with him. Everybody knew it, it was no secret, and he did whatever he could to bring joy to his family.”

To the four Kopelowitz children, Amber, Ruby, Aurah, and Cole, he said, “The biggest way to honour your father is by living life to the fullest. I can only imagine Mark saying, ‘Please don’t sacrifice your happiness and dreams for me.’”

Kopelowitz was born and raised in Witbank. He matriculated from King David Linksfield, and attended the University of the Witwatersrand, where he completed his LLB degree.

“He was a qualified lawyer, but business was his passion,” said Linda.

According to friends, Kopelowitz was a natural entrepreneur and retailer. He sold jewellery in flea markets in his early twenties before going on to make a name for himself in the mainstream retail sector as MK Jewellers, with a handful of stores in upmarket shopping malls.

Friends this week said Kopelowitz had a great sense of humour and was a sociable person who was exceptionally goal driven and ambitious. He loved beautiful things like décor, spending time with his family, and hiking when time allowed.

His two older sisters, Maxine Jaffit and Robyn Sher, said their brother was “a deep thinker who was the embodiment of compassion and kindness”.

“Mark loved business and always wanted to do well. He was an extremely hard worker and never stopped trying. He did everything for us,” said Linda.

Police said the arrested suspects were found in possession of the vehicle which was allegedly used to flee the scene of the robbery. Both suspects are expected to appear in court shortly.

The police are appealing to the public to come forward with any information that can assist with the investigation on the Crime Stop line 08600 10 111.

CAP update

Subsequent to the murder on 11 October of Mark Kopelowitz during a robbery of a jewellery store in Centurion he owned, the SAPS Gauteng Provincial Head Office Serious and Violent Crimes Unit (PHO SVC), mobilised a multi-dimensional team, including CAP security departments, to collect information and assist in identifying the perpetrators and bringing them to justice.

While these operations are ongoing, CAP can report that team of which it is a part has been responsible for apprehending four suspects believed to be involved in Mark’s murder. Two firearms have also been recovered with other exhibits used in the commission of the crime. Additional suspects are being traced. CAP will not stop until all those responsible are located and brought to justice.

The arrests were all processed by the PHO SVC team, and CAP’s legal division will be following through on the prosecution of these suspects. While these acts will never compensate for this loss, we are hopeful that they bring some closure to Mark’s family, and pray for them to find solace and peace.

Baruch Dayan Haemet

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Desai “dismissive and unapologetic” about breaching code

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The South African Zionist Federation (SAZF) this week called for former High Court Judge Siraj Desai to be held accountable for contravening the judicial code of conduct for his anti-Israel views and support of terror organisation Hamas.

“As a citizen, he has every right to be an ardent pro-Palestinian, anti-Zionist advocate,” the SAZF said in its replying affidavit submitted on Tuesday, 12 October, to the Judicial Conduct Committee (JCC). “As a judicial officer, he is constrained by the code, yet he plainly continues to conduct himself without restraint in advocating against Israel and in support of Palestinian causes.”

In the affidavit, the SAZF again accuses Desai of continuing to politicise the judiciary with inflammatory comments that run contrary to the judicial code of conduct. By allegedly doing so, the organisation accuses Desai of undermining the separation of powers between government and the judiciary.

The JCC is part of the Judicial Services Commission which is responsible for dealing with complaints against judges.

The matter goes back to July, when the SAZF lodged a complaint with the JCC accusing Desai of action and conduct “entirely unbecoming of a judicial officer”. The SAZF charged that Desai had, over many years, breached the code of judicial conduct, and accused him of being a politicised judge. It also questioned his recent appointment as legal services ombudsman in which his role is to safeguard the integrity of the legal profession.

For many years, Desai has been an active anti-Israel lobbyist, and has openly shown support for pro-Palestine activities and lobby groups including the Boycott, Divestment, Sanctions (BDS) movement.

Desai lashed back in a 24-page replying affidavit in which he vehemently denied the allegations calling some of them “factually incorrect” and “based on hearsay evidence”. He said the complaint “was without merit”, and requested its dismissal.

Desai submitted that his response must be considered in the context of the following principles, to which he subscribes and which are relevant to this complaint.

“First, silence by judges in the face of injustice and violations of basic human rights, particularly given the history of South Africa, is inconsistent with judicial office,” he wrote.

“Judicial officers, therefore, have a particular duty to confront injustice, promote equality for all under the law, and condemn racism in all its forms.

“Second, judges don’t exist in isolation. They don’t perform their functions in a cloistered monastery isolated from society. They are members of the community with their own beliefs, opinions, and sympathies.”

Quoting the Constitutional Court, his response said “absolute neutrality” was something of a chimera in the judicial context because “judges are human. They are unavoidably the product of their own life experience, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties.”

In this week’s response, Professor Anthony Arkin on behalf of the SAZF, said it was clear from Desai’s reply that he didn’t deny his conduct and the events upon which the complaint was based, accusing Desai of adopting a “somewhat insouciant and dismissive attitude towards the gravity of his violations of the code”.

The affidavit said Desai relied “heavily on background descriptions of his character and pro-human-rights work” but said that the complaint was about his conduct. All the background information amounted to “an attempt to deflect the focus from conduct that is a clear contravention of both the underlying precepts and provisions of the code”.

The response said Desai was “utterly unapologetic in his disregard for the limitations placed upon him by the code”, and accused Desai of being “rather quite brazen” in trying to justify it on human-rights grounds, “which is again an evasion of the issues at hand”.

The response said Desai’s conduct and stance was “incompatible” with the position of the law, as noted by Judge Phineas Mojapelo in the matter between Africa4Palestine and Chief Justice Mogoeng Mogoeng.

In that matter, Judge Mojapelo noted, “The rule is clear: South African judges are prohibited from belonging to political parties; and they are not to be involved in political controversies [debates/disputations], whether linked to political parties or not. Judges are to stay out of politics.”

The SAZF’s affidavit accused Desai of adopting a partisan view of the conflict in the Middle East, and accused him of selectively citing from the contents of the Goldstone Report by failing to mention that the report concluded that both sides of the conflict were guilty.

It said Desai’s failure to mention any blameworthy conduct by Palestinian armed groups again demonstrated that plainly, he was a partisan advocate who supported one party in the conflict.

In a statement this week, the SAZF said, “An officer of the South African court shouldn’t support an anti-Jewish extremist organisation, Hamas.

“For example, last year, during an interview with an Iranian YouTuber, Desai made inappropriate statements likening Ayatollah Khomeini of Iran, an acknowledged violator of human rights, to former President Nelson Mandela. This comparison between the champion of peace, who led the struggle for the fall of apartheid, with a regime that commits gross human-rights abuses, is offensive to South African history and calls into question the moral judgement of Desai.”

The SAZF said that during the same interview, Judge Desai undermined South African foreign policy by referring to the United States, a major trade partner and supporter of our country, as a “Great Satan”.

“This is a clear violation of the code of conduct for the judiciary and the separation of powers inherent in our Constitution. Instead of apologising for these utterances, Judge Desai subsequently and unapologetically reiterated both stances at a political event in Cape Town a few weeks ago,” the statement said.

“In spite of his long-standing links to organisations such as BDS, in 2015, Judge Desai presided over a case brought by BDS activists rather than recusing himself on the basis of conflict of interest.”

The SAZF accused Desai in 2018 of entertaining Palestinian extremist group Hamas during its trip to South Africa.

“Hamas is a violent organisation whose founding charter calls for Jewish genocide and the total destruction of Israel. Using the prestige of the judicial office to promote publicly an extremist organisation is clearly contrary to the precepts underlying the judicial code of conduct, and shows an open hostility towards the Jewish community and the rights of South African minorities,” the statement said.

The SAZF said it didn’t bring this complaint to the Judicial Complaints Commission lightly, and didn’t aim to curtail freedom of expression.

“The SAZF is on record as defending the rights of judges to express their views within the ambit of the judicial code, especially when balanced fairly in the interests of justice. However, with the appointment of Judge Siraj Desai as legal services ombudsman and in the interests of justice and the reputation of the legal profession, it’s essential to hold Judge Desai accountable for his actions and violations of the code of judicial conduct which is unacceptable from a judicial officer.”

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