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Beth Din retracts ruling absolving East London rabbi

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Back in September 2019, the Beth Din found Rabbi Chanoch Galperin innocent of an allegation by the East London Chevrah Kadisha (ELCK) that he had forged the will of the late Israel Bayer to divert funds from Bayer’s estate originally intended for charity.

The Beth Din has now formally withdrawn and set aside this ruling, and the rabbi has formally admitted that his wife wrote the will, which would disqualify him from benefitting from it unless he is permitted to by an order of court.

The East London community is in a state of limbo as the rabbi continues to occupy the rabbinical home and fight the case related to the disputed will in the Grahamstown High Court.

In a plea to the court dated 23 November 2020, Galperin said he denied that the handwriting on the will in question was his, and admitted that it was that of his spouse, Sara Galperin. He admitted that the Wills Act “disqualifies the spouse of a person who has written out a portion of a will in his or own handwriting”, but asks that the court declare him competent to be the executor of the estate and to benefit from it.

The previous version of Bayer’s will instructed that one third of his estate go to the ELCK, but a later handwritten will in the rabbi’s possession allocates this same third of the estate to him. After a Din Torah (hearing) in September 2019, the Beth Din found the rabbi innocent.

According to the ELCK, during those proceedings, the rabbi refused to inform it who wrote the will when questioned.

According to the Beth Din’s judgement, the rabbi then privately informed the dayanim who had written the will. The Beth Din didn’t reveal this information to the ELCK before it made its judgement.

“The respondent [rabbi] denies having written the handwritten portion of the third and final will … The respondent informed the Beth Din privately who had written the will. This person was questioned on this matter, they confirmed that they did so, and provided the Beth Din with a sample of their handwriting,” says the judgement.

In an affidavit deposed on 1 October 2020, ELCK co-president Louis Robinson said that this handwritten evidence was obtained outside of the formal proceedings. The ELCK was never made aware of the evidence nor asked to comment on it. The first the ELCK heard of it was in the Beth Din’s final judgement.

Robinson alleged that the Beth Din’s decision not to take the Wills Act into account may have resulted in the rabbi benefitting although he was disqualified without a court order. However, the rabbi told the SA Jewish Report that “Halachically, it’s perfectly fine for anyone to write a will for anyone.”

The SA Jewish Report sent questions to Beth Din Dayanim Rabbi Gidon Fox and Rabbi Yoel Smith about this issue. Fox said, “It would be inappropriate and probably legally impermissible for the Beth Din to disclose information which is of a private and confidential nature and which was raised in arbitration before it. Furthermore, we are aware that these very issues have been brought before the high court and the Beth Din wouldn’t want to compromise these proceedings by disclosing any private information which was brought to it before at the arbitration. The Beth Din hasn’t received the permission of the parties to make any disclosures, and the Beth Din is accordingly obliged to regard this information as confidential and private.”

But the advocate representing the ELCK, Stanley Pincus SC, said, “The Beth Din was asked to investigate all aspects of the will, including who wrote it, and failure to disclose the information given to it could have resulted in the rabbi benefitting from the will when he was automatically disqualified without having first obtained a court order to do so.”

On 2 November 2020, the Beth Din’s attorney, Steven Weinberg at Moss Cohen & Partners, stated that the Beth Din’s instructions were that “the ruling which it issued in relation to the last will and testament of Mr Israel Bayer and which is the subject of the review proceedings has been recalled and set aside”.

The letter said this was pending the finalisation of a new hearing in respect of new evidence that has arisen from both sides, and that high court applications in respect of the ruling “are misplaced and premature inasmuch as the ruling has been recalled”.

It went on to say that the Beth Din would be pleased if a settlement could be reached, and it would be happy to assist with further mediation. If mediation and settlement couldn’t be achieved, the Beth Din suggested “that all of the disputes in this matter be referred to an arbitration panel to be agreed upon between the parties for a final determination”. The Beth Din offered to provide this arbitration panel, and to allow each side to “agree on the arbitrators and the rules”.

“The ELCK was given the opportunity to appeal after the ruling, but it refused to come,” Galperin told the SA Jewish Report. However, Pincus said that the ELCK “tendered to go back to the Beth Din if certain conditions were met [new dayanim and legal representation amongst other points], but the rabbi refused to do so because the issue relating to the disputed will had been determined by the Beth Din as per their judgement”. Pincus went on to say, “Only a court can order that the rabbi be qualified to benefit from the will, in light of the rabbi’s admission that his wife wrote out the will. This issue and other issues relating to the disputed will cannot and should not be determined in arbitration proceedings.”

The ELCK continues to fight the case in the Grahamstown High Court, “the main issues being whether the rabbi forged the deceased signature on the disputed will, whether the witnesses signed the disputed will in the presence of the deceased, and whether the court will order that the rabbi be allowed to benefit, notwithstanding that he is automatically disqualified in terms of the Wills Act,” said Pincus.

With the relationship between the ELCK and the rabbi irreparably broken down, and the rabbi refusing to vacate the rabbinical home as per the terms of his dismissal, the community is no longer functioning.

The rabbi was dismissed from his position by the East London Hebrew Congregation after a disciplinary hearing in February this year.

“It has not had services for over a year. This has destroyed the community,” says Rabbi Moshe Silberhaft, the spiritual leader of the Small Jewish Communities Association, who has tried to help out where he can.

“People can’t say kaddish, and they didn’t have yom tov services. Before this dispute, this was a small but fully functioning community, which is why it had a rabbi. They would have Shabbat and shiurim – they were carrying on. But now there is no activity whatsoever.” He hopes to help the community rebuild itself slowly as it moves forward.

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Anglican ministers break ranks over church’s anti-Israel stance

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“What do you do when the leadership of an organisation you’ve spent your whole working life serving adopts a policy or position that your conscience won’t tolerate?” asks Reverend John Atkinson. He is one of four local Anglican Church ordained ministers who recently spoke out against the Anglican Church of Southern Africa’s (ACSA’s) anti-Israel doctrine.

Atkinson, along with Reverends Dave Doveton, Dudley Greenshields, and Allan Smith also wrote a letter to the United Orthodox Synagogues’ Chief Rabbi Dr Warren Goldstein, thanking him for taking a stand against ACSA’s approach to Israel, especially in the light of his recent open letter to Anglican Archbishop of Cape Town Dr Thabo Makgoba. In that letter, the chief rabbi said the archbishop was “making a terrible mistake that endangers your own church”.

After receiving the letter from the four ministers, the chief rabbi invited them to meet him, which both parties said was very positive. “We wanted the chief rabbi and the Jewish community to know that there are many Anglicans who would find these policies offensive and a contradiction of our faith,” said Atkinson. “We may be sanctioned, but we aren’t afraid. Standing for the truth and against antisemitism is much more important.”

The group believes that ACSA’s anti-Israel resolution “expresses the ideological perspective of a small but influential elite, and by no means is representative of the average Anglican in Southern Africa. This is why we have made public our rejection of anti-Israel decisions and policies in our denomination”.

Between them, the four ministers have about 160 years of service looking after congregations within their denomination. Two of them were lecturers in theological institutions. All of them have a wealth of experience in their chosen professions.

They are close to retirement, so their careers are unlikely to be negatively impacted by speaking out. “It won’t make us popular, but that doesn’t worry us,” said Atkinson. “There are more people who would speak out if their careers wouldn’t be impacted.

“The average Anglican hasn’t thought about the Middle East at all,” he said, so the Jewish community needs to know that it’s not like three million people have turned against Israel. The ministers will therefore work to increase education and awareness.

He was moved by the meeting with the chief rabbi, and hopes that it “will open the way for greater dialogue between our communities and a greater appreciation of the values we share”.

Delving into why they have taken a stand, he said “this crisis of conscience was precipitated by a resolution that was passed at the highest decision-making body in the denomination in 2019 to support the Boycott, Divestment, Sanctions [movement] and call for a boycott of Israel. The resolution also called on local bodies within the church to adopt these measures.

“Since then, the chief rabbi has had discussions with the Anglican Archbishop, only to be rebuffed. This has been of particular concern because of rising incidents of antisemitism in South Africa,” said Atkinson.

In the letter to the chief rabbi, they wrote, “We want to convey our assurance to you that not all Anglicans support the aforementioned [anti-Israel] synod resolution. Indeed, we are appalled that people in our church would even think of proposing such an antisemitic stance and shocked beyond belief that the synod would uncritically and without any debate pass the resolution.”

A synod is a council of a church, usually convened to decide an issue of doctrine, administration, or application.

They said they weren’t against the criticism of any state and its policies, “but the one-sided diatribe against the government of Israel elected by the people of Israel and the total alignment with certain militaristic organisations bent on the destruction of the Jewish homeland is beyond belief”.

It had caused “much grief and disappointment, as it casts a slur on all of us. The simplistic analysis ignores the role of other countries and organisations who play a direct and indirect role in geopolitics and conflict in the region, and one suspects is meant to advance a propagandistic narrative and shut down other points of view. Certainly, no representative of the Israeli state was invited to give their perspective at the synod.”

The ministers said that “to lay all the blame on the Israelis amounts to scapegoating, which as you are all too painfully aware, is a classic hallmark of the scourge of antisemitism”. They were also deeply disturbed by the resolution calling on them to boycott Israeli companies. “What a terrifying reminder of the horrific genocidal acts against the Jewish community in Europe,” they wrote.

They disagree with the assertion that the present state of Israel isn’t tied to “the historic Jewish nation recorded in the sacred scripture that we as faith communities share. We believe that it’s a thinly veiled attempt to undermine Israel’s right to exist, and is against the historical record. This, too, is a mark of antisemitism.”

They questioned why a church which is based thousands of kilometres away from the conflict “should be so committed to the promotion of one narrative and the total exclusion of the other. If our church is so concerned about the lives of Palestinians, why was it silent about the deaths of 3 383 Palestinians in Syria? We believe the answer is obvious.

“We would like to assure you that we will remain faithful and vocal about Israel’s right to exist and defend itself against attack,” they said. “We will continue to engage with other Christians on these issues to ensure that the pro-Palestinian narrative isn’t the only voice that is heard.”

“The significance of their letter struck home to me powerfully,” Goldstein said. “It shows that there is another voice within the Anglican Church and the Christian community in South Africa, so many of whom love and support Israel and appreciate its role in the world.

“We can easily make the mistake of thinking that certain politicians or religious leaders speak for the country when they come out with such anti-Israel vitriol,” he said. “This letter is indication of a much broader movement of South Africans who have a completely different view. It’s important for us to know that we have many allies and friends across the length and breadth of this country. That’s why I wanted to meet with this group who wrote to me, to express to them on behalf of our community how much we appreciate their friendship and their partnership in getting this message out.

“I’m sure that their letter will encourage others to come forward. Often people feel intimidated and don’t want to speak out. We need to create an environment in South Africa where all citizens can come forward and show their support. There is an enormous groundswell of the silent majority of South Africans who support Israel. I met this group to encourage them to get the message out so that more people can come forward and express their true views.”

Going forward, the ministers will work to “encourage the support [of Israel] in the Anglican population and beyond”, according to Atkinson. “The Jewish community can assist us in this endeavour by communicating with Christians they know about Israel and the Jewish perspective of the Middle East.”

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The miracle of the maroon handkerchief

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Seventy-eight years ago, a Jewish man gave his 17-year-old daughter a maroon handkerchief as a way to remember him. She never saw him again – he died in the Holocaust. But she survived, went to America, and recorded her testimony in 1984.

Fast forward to 2020, and 14-year-old King David Linksfield pupil Noa Nerwich is asked to write a poem for a competition based on a Holocaust survivor’s testimony. She came across Ruth Halbreich’s recording, which includes mention of the handkerchief. Nerwich wrote a poem about the handkerchief and won the competition.

A year later, Halbreich passed away. Shortly thereafter, her grandson, Reg Tigerman, came across the poem in a newsletter he received, and realised it was about his grandmother. But that’s not all: soon after that, he also found the maroon handkerchief. He made contact with Nerwich [who is now 15], bringing a story that has spanned generations and continents full circle.

Speaking to the SA Jewish Report from Los Angeles, Tigerman says, “When I discovered the poem, I was shocked. Ruth, who we affectionately called Nanny, had just passed away a few months ago. The maroon handkerchief had been a topic of conversation within our family because my wife and I revisited her testimony right after she died and talked about trying to find it.

“My mom, who was going through Nanny’s things, did end up finding it. So, not only did Noa write a poem inspired by my grandmother’s testimony, which is an honour in and of itself, but she picked up on an item she mentioned at the very end of her testimony (proving that Noa was paying very close attention), and it was something that a lot of time and attention had been spent on recently. It was a series of dayenus [it would have been enough]. A true miracle. It felt like the world was telling us how important Ruth and her story is, and how important it is to continue to share her story.”

According to the United States Holocaust Memorial Museum, Halbreich was born in 1926 in Warsaw to a well-to-do family of three sisters and one brother. In 1939, their father fled with them to the Russian part of Poland, where he continued his work in the paper business. She, her father, and one sister crossed back into Warsaw, but her mother and two other siblings were sent to Siberia.

Halbreich and her family moved into the Warsaw ghetto in 1940. When the Germans started sending people from the ghetto to the camps, she and her sister were sent outside the ghetto to live in a convent. After the Warsaw ghetto uprising, Halbreich and her sister were sent to a slave labour camp in a small town in Germany. They were liberated in April 1945. She found out that her father had died in the ghetto in 1943, fighting in the underground. She met her husband, a fellow Holocaust survivor, at a displaced-persons camp. She also found out that her mother and two siblings had survived in Siberia.

In her testimony, Halbreich says, “The uprising was in April 1943. My father had left the ghetto in the trucks carrying merchandise. I met him in his office. He gave me a handkerchief of his to remember him by. My father’s biggest wish was to be able to save his children, and he was able to do this. He went back into the ghetto, and no one really knows what might have happened to him.”

A million miles away from that time and place, Nerwich entered the 21st Annual Holocaust Art & Writing Contest run annually by Chapman University and The 1939 Society (a community of Holocaust survivors, descendants, and friends). “The brief was for a piece of creative writing based on the testimony of a Holocaust survivor,” she told the SA Jewish Report.

The poem describes the handkerchief as the only thing Halbreich has left from her father as her world is destroyed, and how it symbolises the flames of destruction and her father’s deep love.

“Hearing her story and writing the piece itself was an enriching experience,” says Nerwich. “I was thrilled when I was awarded first place, a first for King David High School. I always smile just thinking about my poem. However, a small part of me always wished that Ruth would be able to read the poem and know that her story is being shared, that she is being heard.”

So, when she received the email from Tigerman on 15 July, “it changed my life. I read it and re-read it because I was sure my eyes were deceiving me,” says Nerwich.

She was shaking as she read the email. “I felt a deep sense of loss to learn that Ruth had passed away, but I was also deeply moved to learn that her family had the gift of this poem and that Ruth’s story continues to be told. Seeing the actual picture of the maroon hankie – the last memory that Ruth had of her father, the piece of fabric that guided her throughout the horrors she endured – is an image that will be permanently engraved in my mind.”

She says she chose to reflect on this story in her poem “because I could relate to Ruth. I’m a very sentimental person. Just like Ruth’s dad gave her a red handkerchief, my dad made me red roses out of Lego, which I keep in my room. So, the fact that she mentioned the maroon handkerchief that her dad gave her really resonated with me. It made it so much more real. It’s a symbol of her story, and what she and so many others went through.”

Her mother, Daniella Nerwich, says she felt breathless when she read Tigerman’s email. “All this really shows the value of Jewish education. We are so fortunate that King David creates opportunities like this [to enter the poetry contest]. This just shows how it can be so far-reaching. So huge credit must go to King David for creating this opportunity. It has been life changing.”

Because of the pandemic, Nerwich was unable to travel to the United States to collect her prize, but Tigerman’s message has made up for that disappointment. They hope to meet in person one day, and possibly even work together to share the story of the maroon handkerchief as a form of Holocaust education.

Says Tigerman, “While my grandmother didn’t often share her story (she would if you asked, but she wasn’t very proactive about it), my grandfather [Siegfried Halbreich] was a regular speaker. He was a survivor of multiple concentration camps over the course of five and a half years. He served as president of The 1939 Society, the organisation that published Noa’s poem, and was a founder of the Los Angeles Holocaust Museum. Everyone’s story is worth telling and remembering, which has made the oral histories and recorded testimonies so important.”

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COVID-19 vaccination could be compulsory at workplace

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As vaccination becomes more freely available in South Africa, questions arise such as can you make vaccination compulsory and can you dismiss someone if they refuse? Do you have to allow time off to get vaccinated, and what happens if an employee has an adverse reaction? These questions and many more are new to our labour law, and will be subject to litigation over the next many years.

In terms of the department of employment and labour’s latest regulations, the minister has recognised that employers may in terms of their own internal rules make COVID-19 vaccination compulsory.

Obviously, the compulsion must be subject to certain oversight, and must be reasonable in all circumstances. The employer would have to take into account their own operational requirements, and must be able to justify that in terms of these requirements, they would expect employees to be vaccinated against COVID-19.

Over and above this, each case must be carefully explored, discussed, and subject to proper consultation, taking into account the employee’s circumstances. These circumstances can include medical, religious, bodily integrity, and any other factor reasonably raised by the employee or the employee’s representative.

Obviously, each particular employer would develop a set of guidelines and rules which would be read with the disciplinary code and would be properly implemented after consultation with the employees or their representatives.

These rules must be made subject to the above-mentioned criteria, and would probably be differently implemented in accordance with the operational requirements of the position of the actual employee.

For instance, if a buyer for a company has the duty to travel abroad and can do so only if vaccinated, then there would be a compulsion to be vaccinated. It would be incumbent upon the employer to explore whether there are other ways of doing the job or whether an employee is willing to accept another position which doesn’t require vaccination.

It’s absolutely vital for every employer to read the regulation, and to advise all the necessary parties within the next three weeks of their intention to make vaccination mandatory and which employees will be affected.

Obviously, even once vaccination has been made mandatory, it would be subject to the employees being able to obtain the vaccination, and might require the employer to help obtain them. The employer’s policy will take into account various factors such as consultation with all the representatives at the workplace, and will respect bargaining council agreements and any other collective agreements with trade unions.

If there is an informal committee representing the staff and/or a workers forum, these bodies must also be consulted.

The minister of health has published draft regulations for the establishment of a no-fault compensation fund for injuries caused by the COVID-19 vaccination. The Vaccine Injury Compensation Fund will be established in terms of the regulations as an amendment to the regulations of the Disaster Management Act of 2002.

Although this compensation fund for vaccine injury hasn’t been formed yet, the various ministers involved are taking into account commentary from the public, and will be getting legal advice from parliament’s legal advisors.

The injury must be related to vaccination. An injured person may not institute a claim through the court process against the national or provincial government until the claim has been adjudicated by the relevant panel through the compensation fund.

Only if the person is dissatisfied with the outcome of the adjudication or the amount awarded can that person lodge an appeal, and the appeal must be determined by the relevant decision maker. Only after pursuing a claim with the scheme can a person look to the courts if that person is still dissatisfied.

Businesses are urged once again to warn their staff that protocols are in place, and breach of COVID-19 rules and regulations will lead to spread of infection and almost inevitably disciplinary action.

I’m involved in no less than a dozen cases where employers have reported and taken action against recalcitrant employees. It’s time, once again, to reiterate the fundamental, basic rules such as social distancing, mask wearing, and sanitising. Over and above this, any staff member exhibiting symptoms must report these symptoms to their health officer or senior management, and should immediately take sick leave.

The consequences of a staff member remaining silent could be loss of their position and more seriously, the spread of infection.

Employers will have to educate staff about the value of vaccination along with normal social distancing, masks, and hand sanitising. Education in these circumstances, I believe, will be the strongest factor in convincing all staff to get vaccinated.

A consolidated direction on occupational health and safety measures in certain workplaces was gazette on 11 June 2021. This contains new requirements with regard to vaccination.

It’s clear from this that an employer must give employees time off to be vaccinated. The employee may be required to provide proof of an appointment to be vaccinated. Time off shouldn’t be regarded as sick leave, but should be given as a form of special leave.

If there are negative effects from vaccination, the employer will grant paid sick leave in terms of the Basic Conditions of Employment Act. If the sick leave has been exhausted, there could be a claim in terms of the Compensation for Occupational Injuries and Diseases Act. Employees will produce the vaccination certificate thereafter, and a medical certificate if they’ve had complications.

  • Michael Bagraim is an attorney specialising in labour law, and advises nationwide on the restructuring and management of labour forces. He is also a Democratic Alliance member of parliament.

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