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BDS attack on Unterhalter ‘defamatory and shameful’, says SAJBD

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The South African Boycott, Divestment, Sanctions (BDS) Coalition this week tried everything in its power to stop esteemed Gauteng Judge David Unterhalter from being interviewed by the Judicial Service Commission (JSC) for a position on the Constitutional Court.

In spite of its venomous attack on the judge for his association with the South African Jewish Board of Deputies (SAJBD), his interview went ahead.

After it was brought to the JSC’s attention by BDS, Unterhalter was grilled about his involvement with the SAJBD. Unterhalter briefly assisted the board with the upliftment and welfare of the Jewish and broader community during the direst phase of the COVID-19 pandemic last year.

The BDS coalition earlier this week vehemently opposed Unterhalter’s candidacy. In a letter of complaint to the JSC, the loosely formed coalition accused the SAJBD of being “akin to the Broederbond”, serving as a “conservative organisation that supports and minimises the actions of the Israeli apartheid state”.

It said Unterhalter couldn’t “honestly proclaim to be a supporter of human rights for South Africans” and be a member of the board.

Unterhalter is one of eight candidates being interviewed by the JSC for two vacancies on the Constitutional Court bench. It was announced on Wednesday that he did not make the shortlist for appointment.

During his interview on Tuesday night, Unterhalter said he was asked to serve on the board last year during the pandemic. “You should understand, the SAJBD is concerned with the welfare of the Jewish community, with old-age homes, and burial societies,” he said. “It’s also concerned with people who have fallen on hard times generally, but particularly now in the pandemic, and assisting other communities where there is need and hardship.”

He explained that the board’s other concern was antisemitism, and preventing it.

“It’s not a body that promotes Zionism. It’s a body that has existed for well in excess of 100 years, and its precursor organisations many decades before that. I went onto it because it seemed to me to be about assisting – to the extent that I could – with welfare issues for communities in sometimes very dire need. And I don’t therefore think it’s concerned with promoting Zionism. There are other organisations that do so, but I have no affiliation or connection to them.”

He said that from time to time, the SAJBD engaged in litigation against hate speech concerning antisemitism and on occasion, matters had gone to the Constitutional Court. “It did seem to me that in those circumstances, if I was going to offer myself as a candidate for judicial office in the Constitutional Court it would be appropriate to step away from that organisation because it does have this role, and whatever I might have been able to do by assisting welfare in a time of great need must perhaps yield to the perception that one shouldn’t be connected to a body that is engaged in litigation.”

It was for this reason that Unterhalter stepped down from the SAJBD.

“I don’t think my connection in accepting a position on the SAJBD is one that impacts and is connected to Israel and the Palestinian and Israeli conflict, which is an entirely separate matter,” he said.

He stressed that the Jewish community was made up of people with “radically different views” about Israel and the Israeli/Palestinian debate. “Because members of the Jewish community are so varied in their views across the board on this point, I would have been very uncomfortable to be in an organisation that took a particular position on that issue,” he said. He stressed that he saw taking on this SAJBD role as “being able to do something for welfare”.

Asked about his views on a solution to the Israeli-Palestinian crisis, he replied, “A two-state solution, although it’s now unfortunately one that seems to enjoy much less currency than it did in decades gone by, remains the only solution I think feasible, but JUST in what is a hugely complicated and difficult conflict.”

The SAJBD on 14 April lambasted BDS for attempting to have Unterhalter rejected from applying for this position, describing the organisation’s efforts as “yet another shocking display of bigotry and intolerance”. The board said it was an attempt by BDS to “sow division and hatred in our society”.

SAJBD national director Wendy Kahn, said: “When calls are made for Jews who serve on the Jewish community’s democratically elected representative body to be excluded from public service, it amounts to gross antisemitism.”

“There is a long and dishonourable history of Jews being targeted for boycotts and other discriminatory treatment on the basis of their religious and/or ideological beliefs,” the board said. “The demand by the SA BDS coalition that anyone associated with the SAJBD be denied the right to serve on public bodies like the Constitutional Court is just the latest chapter in this shameful saga.”

It said that throughout its existence, the BDS movement had “persistently incited hatred” and “even harm” against the mainstream Jewish community and its leadership.

Milton Shain, a local antisemitism expert and emeritus professor of history at the University of Cape Town, said, “Identifying as harmful to career prospects involvement in a legitimate Jewish organisation which serves a specific minority that enjoys full constitutional rights reeks of antisemitism.”

He said it was “preposterous” to penalise someone for generously assisting a legitimate civic organisation in a democratic country.

“The SAJBD has a proud record of dealing with issues pertaining to Jews and safeguarding the interests of this tiny community, which has never numbered more than 120 000 and numbers today a mere 50 000. It seems to me that those criticising Judge David Unterhalter are confusing the board of deputies with the South African Zionist Federation, which deals with issues pertaining to Zionism and the state of Israel,” Shain said.

“Even if this is the case, it needs to be noted that the South African Zionist Federation is a legitimate civic organisation and involvement in its affairs shouldn’t preclude any possibility of representing the legal [or any other] fraternity at the highest level. Some of the greatest legal minds in the country have enjoyed associations with both organisations.”

Retired Judge Dennis Davis, who previously served the community as Cape chairperson in 2004, told the SA Jewish Report it was “an outrageous complaint” by the anti-Israel lobby.

“It’s irrelevant. It’s not as if he is doing more than promoting the welfare of his own community. When I last looked, it wasn’t illegal to be a Jew in South Africa. It’s a right to serve your community and its local welfare.”

He said he thought Unterhalter was a hugely deserving candidate for the esteemed position, but agreed this was “a sensitive issue for obvious reasons”.

Mark Oppenheimer, an advocate at the Johannesburg Bar, said Unterhalter was “internationally regarded as a jurist of the highest calibre”.

“Before he was elevated to the bench, he appeared before the Constitutional Court in a range of landmark cases that have vindicated fundamental human rights for all who reside in our country. He would be an outstanding candidate for a position on our apex court. The attack launched by BDS demonstrates its venomous attitude towards South African Jewry and Israel,” he said.

A well-known Cape Town advocate who asked not to be named for professional reasons described the BDS complaint as “toxic”.

“It’s appalling, blatant antisemitism, and many of my colleagues who aren’t Jewish agree with me,” he said.

Unterhalter, a former winner of the Professional Excellence Award at the Absa Jewish Achiever Awards, was born and raised in Johannesburg. He attained his BA degree from the University of Cambridge, LLB from the University of the Witwatersrand, a Bachelor of Civil Law from the University of Oxford, and an MA from Cambridge. In 1990, he was called to the Bar in South Africa, where he practised as an advocate for 27 years. He was appointed judge in 2018, and has since presided over a number of high-profile cases.

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3 Comments

3 Comments

  1. Myron Robinson

    Apr 15, 2021 at 4:02 pm

    The BDS is anti-semitic as is Dali Mpofu. What is is expected from the JSC that is composed mostly of politicians who all have their own political agenda

  2. Michael Felthun

    Apr 15, 2021 at 8:59 pm

    It is South Africa’s loss, not David Untehalter’s.

  3. The Much Hon. Prof. Ashley Frank

    Apr 16, 2021 at 2:06 pm

    How can the ordinary South African record their disgust at this Apartheid behaviour? I’m prepared to support any civil society movement to oppose this kind of decision. We can’t let it pass or anti-semitism will define South African society.

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What really happened in Israel this week

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It’s just gone 03:00 in the morning on Wednesday, 12 May. I’m hunkering down in a bomb shelter which doubles up as my study in Tel Aviv. I’ve checked a few times that the iron door and window are tightly shut. I can hear the sirens screeching overhead, followed by a pause, and then a massive explosion.

Just a few hours ago, I was outside on the streets, which are eerily quiet for this busy city.

An earlier night-time drive into neighbouring Holon was even more unusual. A main thoroughfare was cordoned off by police and firemen who were shouting into their cell phones and at each other. Half an hour earlier, a rocket had hit an empty bus and debris was lying everywhere. The glass windows of nearby shops had been completely shattered, and residents were coming to assess the damage. Four people are being treated in hospital, one of them a five-year-old girl.

It’s been chaotic since last Friday night, when clashes erupted outside the Al Aqsa mosque compound in Jerusalem. For five consecutive nights, the pattern has been pretty much the same. Muslim worshippers make their way into the Old City through Damascus Gate while outside, Israeli police and the army take up position. There’s even a section where the journalists stand. After the prayers, a group of youngsters inevitably start hurling water bottles, rocks, and glass at the officers who after a while, respond by charging into the crowd, arresting some of the protestors, and firing stun grenades. It’s predictable.

Hamas, the rulers in Gaza, are egging on the protestors. The announcement by Palestinian President Mahmoud Abbas that he was postponing Palestinian elections – the first in 15 years – indefinitely, and blaming Israel for it, didn’t help. Neither did the fact that this is happening during the Muslim holy month of Ramadan, a heightened time of religious sensitivity. It also comes after the Supreme Court was meant, on Monday, to give a ruling on the evictions of about 70 Palestinians from houses in the contested East Jerusalem neighbourhood of Sheikh Jarrah that Jews say they owned before 1967. The court has delayed the announcement of its decision.

But still, the result is the worst violence in four years, and it has quickly spread to other Israeli Arab localities. The city of Lod just outside Tel Aviv is in lockdown. The Israeli army imposed a state of emergency after troops had to evacuate some Jewish residents amid clashes between Arabs and police and after buildings, including a synagogue, were set alight.

At the time of writing, five Israeli civilians and one soldier have been killed. The latter happened after Hamas fired an antitank missile at an Israeli jeep on Wednesday morning. One of the Israeli civilians killed was a pensioner who was too old to get to a shelter and who died alongside her Indian helper in their home.

Hamas has criticised Israel for trying to change the status quo in Jerusalem, but Israeli soldiers insist they are reacting only after coming under fire. They accuse Palestinian youngsters of shoring up stones, rocks, and homemade ammunition inside the Al Aqsa compound and attacking them with it.

But the international community is clearly more on the side of the Palestinians. Amnesty International has accused Israel of excessive force that I, as a journalist covering the protests, dispute. There are certainly some instances of the Israeli security forces manhandling and violently attacking protestors but on the whole, certainly outside Damascus Gate where I’ve been most of the week, it’s dangerous for the troops as they are provoked and hit with things that could seriously injure them if they weren’t wearing helmets.

Israeli Prime Minister Benjamin Netanyahu announced that he wouldn’t give in to rogue elements trying to disrupt Jerusalem, and in his latest speech has threatened that Hamas will pay a “dear price”.

I’m on the phone constantly with my colleagues in Gaza. One lives in the Hanadi Tower, a 13-storey residential building in Gaza city, that collapsed on Tuesday after Israeli air strikes targeted an office used by the political leadership of Hamas. An hour before the strike, residents were warned to leave their homes by the Israeli Defense Forces and hence there were no reports of injuries. But my colleague is now homeless.

I also have an Israeli friend who phoned me in tears. Her son is among the thousands of soldiers who have been called up to the Gaza border. It’s not yet clear if Israel plans a ground offensive but all options are on the table. Five thousand additional reserve troops have also been making their way to beef up the army in the southern Israeli communities and help those maintaining calm in Israeli cities across the country – Haifa, Ramle, Akko, Beer Sheva, and others.

While between 80% to 90% of rockets fired from Gaza – and to date there have been more than 1 200 in total – have been shot down by Israel’s anti-missile defence system, the Iron Dome, many Israeli civilians are choosing to move to the north out of harm’s way – hopefully.

Several of those I interviewed blame American President Joe Biden for the flare-up. After he took office in January, Biden expressed little interest in pursuing an Israeli-Palestinian peace agreement. He’s also been reluctant to get involved in the current conflict, but is being urged to do so. The clashes have caught his administration on the back foot. By comparison, the Trump administration showed unstinting support for Netanyahu and hostility towards the Palestinians.

“If Trump was in office now,” many Israelis tell me, “the Palestinians would be too scared to act like they are now. But they know Biden won’t do anything!”

Come tonight – and probably for the rest of the week – I’ll be sleeping in my bomb shelter, as will hundreds of thousands of Israelis. Gazans, too, will be hunkering down where they can find shelter. No-one wants another war; but then again no-one’s being asked.

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Mount Meron tragedy devastates South African family

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Yohanatan Hevroni was so excited about going to Mount Meron for Lag B’Omer after not having been there for seven years, he arranged a bus for his community to get there. This time, he went as a beloved husband and the father of three girls. He wouldn’t return alive.

The 27-year-old tzaddik who lived in Givat Shmuel in central Israel leaves behind his children and wife, Tanya Hevroni (nee Taback), who made aliyah with her family from Johannesburg in 1997.

Hevroni was one of the 45 people who died senselessly in a stampede at the annual Mount Meron Lag B’Omer celebrations on Thursday, 29 April, the largest peacetime tragedy in Israel’s existence.

Speaking to the SA Jewish Report from the shiva house on Tuesday, 4 May, Tanya’s brother, Eitan Taback, described how events unfolded.

“A rabbi told us that on the way there, Yohanatan said how amazing it was to see the influence a tzaddik had after he had died [referring to Rabbi Shimon Bar Yochai, whose life is celebrated by thousands on Lag B’Omer at Mount Meron]. And after Yohanatan passed, we saw the amount of influence he had on everyone around him – the children he taught, people with whom he learned Torah.

“At 03:00 on Thursday night, Yohanatan’s mother got a phone call from his phone,” said Taback. “They said ‘his phone had been found in Meron, but we can’t find him’. Immediately, search parties were sent to hospitals and Meron itself. No one had any answers. After searching everywhere, they decided, with heavy hearts, to check the morgue, and that’s where they found him.”

Kalanit Taub, a volunteer emergency medical worker with United Hatzalah of Israel, described the devastation she encountered at the scene. “We saw stretcher after stretcher coming up the hill, with people performing CPR on them as they were running. I just saw bodies lying on the ground to my left and right. They all looked completely whole, completely fine, no broken bones, no blood. When we learned about [dealing with] a mass casualty incident, the first thing you’re supposed to do is treat the injured because those are the ones you’re more likely to save. But I didn’t see anyone injured. All I saw was people who weren’t breathing, who didn’t have a heartbeat. I thought, ‘Where are the injured people? Everywhere you look, everybody’s dead!’

“There was nothing we could do for any of them, we all tried our hardest, and we were completely unsuccessful,” she said. “The line of bodies kept getting longer and longer. Within seconds, they were out of body bags. We were taking thermal blankets to cover these people. And then we were out of thermal blankets. We didn’t have anything to cover the bodies with. There were just too many of them.”

Taub is also a member of the psycho-trauma unit. “I walked up the hill, and there were so many people in shock. People screaming hysterically, staring into space, and lying on the ground in foetal positions, unresponsive. I probably treated a hundred psycho-trauma patients. Meanwhile, [community emergency response team] ZAKA set up a tent that became the station where all the lost kids went. They were just naming kids one after the other separated from their parents. But not all were reunited because some of those parents died.”

By a miracle, Hevroni’s family managed to arrange his funeral for that day at 17:00. Because it was just before Shabbat, they expected few people to attend. But thousands arrived to pay their respects.

“The extent of his impact on people was so clear,” said Taback. “One rabbi bought a book of poems that Yohanatan wrote. They were about the simple things in life, and recognising the good in all other human beings. One of his students shared how he came to learn with Yohanatan and be inspired by him, but after their lesson, it was Yohanatan who told his student that he was inspiring.”

He described his brother-in-law as a “quiet guy, with a gentle soul, who always had a huge smile on his face”. He and Tanya married in Israel and went on to have three daughters, aged six, four, and two. They celebrated their eldest daughter’s sixth birthday a few days before the tragedy. “It would be the last celebration we would have together. There was so much happiness,” Taback said.

Two years ago, the family faced a major crisis when Tanya was diagnosed with cancer. “Yohanatan was there the whole time. He was a full-time father and mother. Now it’s the other way around. Tanya will have to be both the mother and the father.”

He said his parents, Ofra and David Taback, have been by his sister’s side from the moment they heard that Yohanatan was missing. “My parents are strong. They’re trying to be there for Tanya and the family. They’ve been here night and day.” Family around the world have joined in their grief.

Taback said his sister is devastated, but the support of the community had helped tremendously. “One thing we can take from this is that the Jewish nation will always unite in these situations. We must be there, one for each other, as brothers and sisters are meant to be,” said Taback. “Just be good to each other. We don’t need to wait for disasters to unite us. As the Jewish people, that’s who we are.”

Meanwhile, young South Africans on a gap year in Israel said the disaster had hit close to home. Many of their contemporaries attended the celebrations at Mount Meron. Dean Chaitowitz, who is at Yeshiva Eretz HaTzvi in Jerusalem, said he would have been there if enough boys from his yeshiva wanted to go.

“It wasn’t an official yeshiva trip, but they said that if there are enough kids, they’ll organise a bus to go. I’m trying to absorb as much of Israel as possible on my gap year, so I wanted to go. But in the end, there wasn’t enough of a demand. I was upset that I didn’t go, but when we found out what happened, I was shocked. I could easily have been there; our whole group would have gone. Hearing about yeshiva boys getting killed really hit hard, just knowing that it could literally have been any of us.”

Dani Sack who studying is at the Midreshet HaRova seminary in Jerusalem, said, “My group wasn’t going to go to Meron, but hearing about the tragedy nonetheless was a huge shock to the system, especially since some of our friends were planning to go.

“It was jarring considering we’d been so close to Meron, and also celebrated with dancing and singing that night. The fact that so many of those wounded and killed were young people put into perspective the magnitude of what a gap year entails. Being away from family is scary enough, but to think that a simple celebration on Lag B’Omer could turn deadly is terrifying.

“At Midreshet HaRova, we sang and said tehillim at the Kotel in honour of those who were killed. All the Torah we learned on Sunday was l’iluy nishmat [for the elevation of the soul] of the 45 we lost. In Israel, the mood over Shabbos and the weekend was solemn. You could feel the loss in the air. It’s really surreal being here during this moment, something that the Jewish national will remember forever.”

To support the family of the late Yohanatan Hevroni, please visit: https://givechak.co.il/yeonatan/en

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Chief rabbi calls JSC questioning ‘racist and antisemitic’

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Chief Rabbi Dr Warren Goldstein this week was appalled at the “conduct of the commissioners of the Judicial Service Commission [JSC] in their questioning of two Jewish judges [over the past weeks]”. He described it as “racist and antisemitic in effect, if not in intention”.

Judge David Unterhalter was grilled about his short association with the South African Jewish Board of Deputies (SAJBD) and his views on the Israeli-Palestinian conflict in his interview with the JSC. He was being interviewed for a position on the Constitutional Court. Similar queries were directed at judicial candidate Advocate Lawrence Lever who is standing for a position in the Northern Cape, including if he observed Shabbat.

“The Jewish candidates were the only ones subjected to questions relating to religious identity and practice,” said the chief rabbi. “The direct implication of their questions was that a Jewish judge who is a Zionist or observes Shabbat would be disqualified from holding high judicial office.

“This violates the letter and spirit of our Constitution. It’s morally and legally repugnant for officers of the JSC to discriminate against any candidate on the basis of their religious identity. They should all be ashamed of themselves,” the chief rabbi said.

He called on JSC commissioners including the minister of justice to retract and apologise for their comments. “And I also call 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 their entire process. Racist conduct can never be condoned,” Goldstein said.

The SAJBD also described the JSC’s questioning of both men as “discriminatory and anti-constitutional”.

“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,” said SAJBD National Director Wendy Kahn. “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 practices, 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,” said Kahn. “It’s also extremely disturbing that questions posed to both Advocate Lever and Judge Unterhalter focused extensively on their possible association with the Board. Nearly all Jews in South Africa have some association with [it]. One wonders why a body mandated with protecting constitutionally sound principles of religious freedom and fighting hate would be so objectionable to members of the JSC panel,” she asked rhetorically.

“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.

“From the questions Jewish candidates were asked at the JSC interviews this month, one would question whether those bent on pursuing an antisemitic agenda are beginning to influence key decision-making bodies unduly. We call on all South Africans to stand up and protect these constitutional values, and reject all forms of discrimination.”

Rabbi Greg Alexander, the co-chairperson at the South African Centre for Religious Equality and Diversity (SACRED), didn’t hold back on his opinion of the interviews. “There is little doubt that there was flagrant discrimination at the recent JSC hearings. This is specifically concerning the two Jewish candidates being interviewed.”

“Had such religious or cultural questions been asked of others of another faith, it would undoubtedly have sounded an alarm and disgusted those observing,” said SACRED co-chairperson Rabbi Julia Margolis. “However, we now face a doubly-disgusting situation in that such questions arose in the first place, and secondly, that only one religion, faith, or culture appears to have been deliberately targeted.

“This suggests that the very foundation of South Africa’s democracy is under threat, and one cannot help recalling the late Nelson Mandela’s voice: ‘I have fought against white domination, and I will fight against black domination.’ The determination of the late, great statesman to fight for absolute equality and against discrimination of any kind should be brought front and centre at this time. Those who raise such blatantly discriminating questions should be publicly shamed for doing so.”

“There does appear to be some prejudice in the questioning from the JSC,” said Mark Oppenheimer, an advocate at the Johannesburg Bar. To question a Jewish advocate about their observation of the Sabbath “is a weird thing to ask, given that there have been many Jews on the courts over the years, and you wouldn’t ask a Christian whether they could do their job given that they might go to church on Sunday, or a Muslim who needs to go to prayers on a Friday. So there is either antisemitism or anti-Zionism, or a great deal of ignorance. With Judge Unterhalter, it’s unclear if this was an excuse to try and block him, or whether it was the reason he wasn’t nominated further.”

Writing in Business Live, Tony Leon, the former leader of the opposition, said, “In the dismissal of Unterhalter’s claims for judicial advancement, his membership of the ‘suspect class’ of his race was fused with his religious affiliation. Thus, the JSC interviewers gave little airtime to Unterhalter’s credentials, which include being the first South African ever appointed to the appellate body of the World Trade Organisation, where he served as chairperson for two years.

“Courtesy of a bile-ridden tissue of vitriol against him authored by the Qatar-funded Boycott, Disinvest and Sanction outfit, Unterhalter landed up spending much of his time offering his views on Zionism (not in the remit of the court) and his one-time membership of the South African Jewish Board of Deputies,” continued Leon. “According to BDS, the century-old Board, whose leadership is democratically and transparently elected, is akin to the Broederbond. Mere membership of this community body rendered Unterhalter unfit for higher judicial office in the view of BDS, a matter the JSC seemed to endorse.”

The JSC recommended Lever for a vacant judge’s position in the Northern Cape. It also recommended lawyer Norman Manoim for a vacancy on the Gauteng High Court bench. Both are to be referred to President Cyril Ramaphosa for appointment. Meanwhile, the Council for the Advancement of the South African Constitution is reportedly considering legal options regarding the recent interviews by the JSC for candidates for appointment to the Constitutional Court.

Speaking to the SA Jewish Report, Manoim said, “It’s a great honour to be able to serve. I’ve been in public service for a long time – on the Competition Tribunal for 20 years as a public regulator – and I wanted to be able to continue serving.”

As a human rights lawyer before 1994, Manoim said he hoped to bring “the perspective of a lawyer who has worked with and without a Constitution”. He also wants to emphasise the importance of institutions in society. “We as a country must ensure our institutions work properly and independently, and we must work to protect them,” he said.

He said it was important for people who had the opportunity to serve in public office, to do so. “It’s easy to criticise society – and we do have many problems. But we must get our hands dirty and contribute towards solutions. As an optimist, I think we can solve our problems – we always have. So we must put ourselves in whatever role we can be useful in. This community has people with a wide range of skills and talents. We must get involved in whatever sphere we can to make a real difference.”

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