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Mogoeng ruling a moment of reckoning




When news broke on 4 March 2021 that the Judicial Conduct Committee (JCC) had directed Chief Justice Mogoeng Mogoeng to apologise unconditionally for statements he made about Israel, it felt for many like a moment of truth, whether they were supporters or detractors of the chief justice.

Mogoeng was taken to task for comments he made during a webinar in June 2020, and later at a prayer meeting when he doubled down and refused to apologise for what he had said.

Africa4Palestine, the Boycott, Divestment, Sanctions South Africa (BDS SA) coalition and the Women’s Cultural Group laid complaints against him, saying he had flouted rules regarding judicial ethics. The matter was adjudicated by Judge Phineas Mojapelo.

Amongst other points, the chief justice said in the webinar that, “We are denying ourselves the opportunity of being a game changer in the Israeli-Palestinian situation. The forgiveness that was displayed by President Mandela is an asset that we must use around the world.”

Mogoeng expressed support for Israel and the Palestinians, and said, “I’m under an obligation as a Christian to love Israel, to pray for the peace of Jerusalem.” He stressed that he was bound by the policy of the South African government, and didn’t reject it.

But in his judgement, Mojapelo said that Mogoeng had gone too far. “Whether we like it or not, the chief justice isn’t like any other citizen of South Africa. He is the head of the judiciary and is subject to the restraints of that office, including the ethical rules which govern the conduct of each and every single judge. He is subject to those restraints of his office in his official and private capacity,” he wrote.

“Members of the judiciary have a duty individually and collectively to publicly accept their own peer-review process and to strengthen its credibility. Instead, he showed his disregard for the process by flaunting the fact that he would never apologise for his conduct, even [in Mogoeng’s words] ‘if 50 million people marched for ten years’.”

Mojapelo provided the exact words of an apology and retraction that the chief justice must make by 14 March 2021. At the time of going to print, Mogoeng has remained silent.

A senior member of the legal profession in South Africa, speaking on condition of anonymity, said Mojapelo is a respected judge who wouldn’t make a biased ruling. The ruling, he said, was more about Mogoeng “straying into territory he shouldn’t” rather than what he said about Israel. However, he noted that another judge had strongly condemned Israel in the past and was never reprimanded, and “he should have been”.

But writing for Business Day, Milton Shain, emeritus professor of history at the University of Cape Town, noted among other points, “What seems to be drowned out is the vehemence with which his [the chief justice] words were greeted at the outset, as opposed to the relative silence around his comments on the COVID-19 vaccine, not to mention the unusual alacrity with which the JCC has acted on the matter. Should we be surprised? The chief justice deviated from the national script.

“While antagonism towards Israel cannot axiomatically be equated with antisemitism, it’s apparent that the discourse of anti-Zionism often goes beyond the bounds of normal political rhetoric and frequently betrays vulgar Jew-hatred. Israel alone is signalled out for obloquy, while the human-rights abuses of many other states are ignored. Mogoeng made this clear. In so doing, he crossed a red line.”

Meanwhile, Sara Gon, the head of strategic engagement at the Institute of Race Relations, said, “What Mogoeng said about Israel wasn’t particularly inflammatory, even though it seemingly contradicted government policy. He has said far worse in the past, and no complaints have been made.

“The moniker of Israel as an ‘apartheid’ state applied by the ANC [African National Congress] is at risk with Mogoeng’s utterances. This causes a problem because it questions the ANC’s position, yet the ANC supposedly holds that it’s available to act as an ‘honest’ broker in reaching peace. The ANC should have ignored it instead of bringing it up in parliament. Its failure to take action on previous misconduct means it’s an anti-Israel knee-jerk reaction.”

Gon doesn’t think the ruling breaches Mogoeng’s religious rights, and said his right to free speech is limited to the code of conduct. “Judges are required to be careful about their public statements. I suspect if he’d worded it more judicially, he could have got away with it. But he’s operating in a milieu where his words will be watched.

“It is, however, a question of seriousness and, other than offending certain groups, it hasn’t been a crisis anywhere near the crisis that has beset the judicial system by the failure of the JCC to get to grips with the matters against Judge [John] Hlope over more than a decade. The contrast is disgraceful.”

Rowan Polovin, the national chairperson of the South African Zionist Federation, said the organisation was concerned by the ruling for three reasons. “First, the original comments of the chief justice were legitimate, fair, and impartial. They gave full credence to both sides of the Israeli-Palestinian conflict. His comments were in line with South African foreign policy, and he took care to note that he is bound by South African government policy on the issue.

“Second, the effect of this ruling is to make balanced – let alone pro-Israel – positions politically controversial in this country. If the chief justice had expressed an anti-Israel position, he would have been applauded by those who instead seek to damage him. This falls in stark contrast to judges who have taken political positions or expressed an opinion on controversial matters but have never been questioned or sanctioned.

“Third, this leads to a form of ‘cancel culture’ in our country. If one is not blatantly anti-Israel, then one’s comments aren’t accepted in the political discourse. It leads to a chilling effect, where pro-Israel or even balanced opinions are silenced. The JCC in this matter may have handed the government a blank cheque to silence those with whom it disagrees through this ruling.”

Others saw the fight as just beginning, and boldly expressed their support. “The chief justice must never and will never apologise for praying for the peace of Jerusalem,” said South African Friends of Israel (SAFI) spokesperson and radio personality Bafana Modise. “If you expect an apology, forget about it. We serve the G-d of Israel. Israel is the homeland of Christianity. We will not be silenced by you. Chief Justice must not ever and will never, ever, apologise for praying for Israel. We will never apologise for praying for the G-d of Israel.”

SAFI and other Christian organisations have created a petition calling for “President Cyril Ramaphosa to publicly support [Mogoeng] and his right to speak out and express his Christian views to bless Israel and pray for the peace of Jerusalem.” At the time of writing, 114 600 people had signed it. One supporter wrote, “I’m signing because we still live in a country with free speech. Why can those opposing Israel speak out, but Christians that support Israel must be muted?”

African Christian Democratic Party leader Kenneth Meshoe, who founded the non-profit organisation Defend Embrace Invest (In) Support Israel (DEISI), said in response to the ruling, “The JCC’s finding … is very disturbing and unsettling. DEISI views this finding as a threat to the religious freedom of all South Africans, particularly members of the Judeo-Christian faith.”

Vivienne Myburgh, the national director of the South African Branch of the International Christian Embassy Jerusalem, said, “We fully support the right of [Mogoeng] to express his Christian convictions and support for peace in the holy land, and we denounce those who are mischievously misinterpreting his message towards their hateful agenda.

“His message has been one of love for all people caught up in the Israeli-Palestinian conflict. He should be applauded for his impartial and unprejudiced stance. This kind of calumny actually exacerbates divisions and increases religious and social tensions at home and in Israel. Any attempt to abrogate [his] constitutional freedom should cause all peace and freedom-loving South Africans to be most wary and alarmed.”

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1 Comment

1 Comment

  1. Shirley Modlin

    Mar 13, 2021 at 1:22 pm

    What is happening to this country is sad, when one can’t express
    a point of view . I’m proud of CHIEF JUSTICE MOGOENG MOGOENG for
    taking a stand.

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



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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Couple caught in crossfire of attempted mall robbery



A young couple attempted to flee the scene of a botched armed robbery at Melrose Arch on Easter Monday, only to get caught in a hail of bullets.

Today, Brandon Regenbaum, 27, lies in hospital in a serious but stable condition under heavy sedation following a five-hour long operation to reconstruct his jaw and repair his mouth. He was shot in the face after robbers hastily fled the upmarket lifestyle mall where they had tried unsuccessfully to rob Elegance Jewellers.

His girlfriend of three years, Lorian Blechman, 25, witnessed the whole scene and luckily escaped unharmed.

The couple, who were due to leave for a holiday in Umhlanga Rocks that day, met for breakfast at Tashas. They left the mall in separate vehicles and found themselves unwittingly in the middle of a gun battle between fleeing suspects and the mall’s security guards.

“The robbers were running towards the Virgin Active Gym. We quickly took a different exit to avoid them, it was scary,” said Blechman.

They beckoned to each other to take an alternative exit near the Daytona shop in a bid to dodge the fleeing suspects. To their horror, they were then confronted by the robbers – who had made it to their escape vehicles – further down the road on Athol/Oaklands Drive in the direction of the N1 highway.

The couple could see the suspects’ vehicles in their review mirrors, so they instinctively swerved out of the way to allow them to speed past. There were loud gunshots, after which Blechman noticed Regenbaum wasn’t driving. She frantically called him to ask why.

He told her, “Babe I love you, but I’ve been shot and I’m going to die.”

Traumatised and still in shock, Blechman told the SA Jewish Report that she jumped out of her car and ran to him.

Speaking from hospital, she said, “There was blood and glass everywhere, and he was in a lot of pain. He told me he was dying. I remember pulling up his hand brake,” she said.

A young Jewish couple walking their baby immediately called Hatzolah, which arrived a few minutes later. While waiting for the ambulance to arrive, another witness helped Blechman to make several calls to family. She told Blechman to keep talking to Regenbaum.

“I told Brandon that help was on the way. I told him his mother and brother were coming. I asked him where I could find his Discovery medical card. I told him general things like he was going to be okay, to stay with me, to stay awake. I told him to count how long it would take me in seconds to run to my car 10m away to get my keys,” she said.

Blechman called her father, who was already in Harrismith en route to Umhlanga Rocks where they were supposed to meet later.

Regenbaum’s father, Clifford, was in Plettenberg Bay on holiday when he received the call telling him his son had been shot.

“I was shocked,” he told the SA Jewish Report.

He believes his son was shot by the robbers who may have mistaken him for a security guard in hot pursuit.

“He drives a bakkie with our company name on the side which looks like a security vehicle and even has hazard lights. The robbers had already seen him leaving Melrose Arch, and I think believed him to be a security guard. I honestly believe they tried to kill him,” he said.

“It has been a stressful, worrying time. He will recover, but it will take time. I’m angry at this senseless shooting of innocent people. My son could have died. These robbers have no respect for human life. I don’t know what there is to learn from this.”

Gauteng police spokesperson Kay Makhubele told the SA Jewish Report, “Police are investigating a case of attempted business robbery and attempted murder which occurred at Melrose Arch.

“It is alleged that an unknown number of suspects driving in two cars, an Audi Q7 and a Ford Ranger, were in a shootout with security guards after they were intercepted before the business robbery,” Makhubele said. “A man who was driving his car [Regenbaum] was shot and injured during the incident. Nothing was taken from the shop.”

While doctors have told the family the operation was successful, Regenbaum will have his jaw wired for seven weeks, and won’t be able to talk or eat solid food.

“It will be a long road to recovery,” said Blechman.

“It’s a miracle Brandon survived. It’s also freaky that we were in separate cars. If I had been with him on the passenger side of the car, I might not be here today. I was running late. Brandon needed to fetch his siddur and tefillin to assist my father with a minyan on holiday, as he is saying kaddish for my zaida who passed away last year. I believe my zaida was watching over us,” she said.

Police ask that anyone with information contact 0860 010 111.

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Israeli company turns SA water from toxic to drinkable



An Israeli company is assisting local government authorities to transform toxic water to healthy drinking water in what could be a game-changer for South Africa as a water-scarce country.

The company, BlueGreen Water Technologies, is a world leader in eradicating toxic algae from water sources, and has offered its expertise to South Africa.

With a branch in South Africa, the company started working at Setumo Dam on the Molopo River in North West province earlier this month. The project is in collaboration with Sedibeng Water, the company overseen by the Department of Water and Sanitation.

Speaking to the SA Jewish Report from Germany where he is currently based, BlueGreen Water Technologies Chief Executive Eyal Harel said, “Toxic algae blooms are like a ‘global pandemic’ of bacteria. They infest bodies of water, and when that population of bacteria explodes, it makes the water toxic. You can’t use that water for drinking or recreation, it depreciates property, it makes that body of water too hostile for other life forms, and it creates health and economic problems.”

The company believes in the value of all people having access to quality drinking water, Harel said, and it’s doing the work in South Africa on humanitarian grounds. “At the Setumo Dam, it’s more like lots of bacteria with a bit of water in between. But half a million people rely on it for drinking water. We came to help get good quality drinking water to these communities.” Local government departments and officials had been “extremely helpful … everyone is working together”, Harel said. “Even in this time of pandemic and reduced budgets, they are doing an excellent job.”

He said the condition of the dam meant it was impossible to treat it from the ground, so they have had to deploy helicopters to distribute product from the air. “This is the first operation of its kind in the world. It’s new for us too, and requires lots of co-ordination with government officials, water boards, and locals.”

The company describes its products as “floating, slow-release formulations of market-approved algaecides designed to prevent the intensification of cyanobacterial toxic blooms in freshwater bodies [also known as ‘blue green algae’]”.

Harel said he was motivated to work with water as “water touches all people, no matter their differences.” With 22 March being ‘World Water Day’, he emphasises that “two billion people around the world only have access to poor quality water. About 99.9% is left untreated, and people think there is nothing they can do. We want to educate decision-makers that this isn’t the case anymore. Lakes can be treated, even much bigger lakes than Setumo Dam. In addition, algae blooms can actually be prevented.”

Harel got married in Cape Town, and was there during the height of the drought in 2018.

“I remember the term ‘Day Zero’, and how frightening it was,” he said, pointing out that drought also contributes to algae blooms because with less water, “pollution concentrates and bacteria grows. It becomes even more toxic, less liquid, and makes the existing problem much worse. That could be the reason Setumo Dam was in such appalling condition.”

The company also assisted Roodepoort Dam, reducing toxic levels of algae in the water two weeks before a rowing competition in March 2020, just before the pandemic hit. However, Harel said Setumo Dam was in much worse shape. “It’s first and foremost a drinking water source,” he said. “It’s in a rural area that borders Botswana, and the communities are about as poor as it gets. So it’s our small way of helping.”

He emphasises that the company is “completely non-political” and is simply trying to reach out to areas where it knows there is an acute problem. It has even reached out to other Middle Eastern countries that aren’t friendly to Israel. “We aren’t here to make a political stand but a humanitarian one, and any human-rights organisation should understand that.

“Part of our agenda is to empower local communities to take responsibility for their local water source. We come as guests,” he says. “In all likelihood, if the dam isn’t maintained, it will go back to the way it was. So, our ultimate goal is to train local communities to be able to assess water conditions. They will be the ‘boots on the ground’ and raise the flag that there is a problem. We work with real-time remote sensing capabilities and satellite imagery to assess conditions in the lake, so they will be part of that process.

“We have established good relationships with the government. It sees the problem for what it is, and is taking a long-term approach. We are totally committed to improving water quality in South Africa, and we see the same from government.”

The company’s director of operations in South Africa, Jurgens van Loggerenberg, told the SA Jewish Report that he had worked in water-treatment processes throughout South Africa for the past 20 years.

“Over the past two decades, I’ve seen a decline in the management of infrastructure and water quality. It’s a big problem as it affects people’s lives. So, when I saw BlueGreen’s technology and what it could mean for the improvement of water quality, I was fascinated.” He joined the company soon afterwards.

He believes the technology could “be a game-changer for South Africa. Toxic bacteria means that humans suffer. And it’s never been looked at this way before. Water has been treated only at the treatment facility. I don’t think the team has ever treated water of this poor quality before, but it has a strong strategy. We have the support of the Department of Agriculture, Forestry, and Fisheries, and the Department of Water and Sanitation. They are standing behind it. They believe in the technology and what it can do for the environment. They know it can help them achieve their goals.

“One thing we observed is that there are so many shops in the area that sell bottled water,” he said. “The day the community can open the tap and have safe drinking water will be a big day for the country.”

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