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New podcast takes us behind the scenes of the Concourt

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SA News

Johannesburg advocate Mark Oppenheimer is so passionate about the law and the Constitutional Court, he has created a podcast that allows listeners to go behind the scenes of the most important cases in South Africa. “Constitutional Landmarks” explores everything from the Truth and Reconciliation Commission (TRC) to the question of the death penalty, to Zuma’s legal battles, discussed in depth with the judges who made landmark findings and the advocates who stood before them.

“It’s a project I’ve been working on for a couple of years,” says Oppenheimer. “I wanted to interview judges and advocates who were involved in the biggest cases heard at the Constitutional Court [Concourt]. The idea is to have an eyewitness account to history. The public has become really invested in the Concourt and who sits on it, so this is to showcase the early days of the court and the big cases and figures in that court.”

Podcast episodes will be released every two weeks. “There are three prominent Jews involved [in the podcast]: Albie Sachs, Gilbert Marcus, and myself. So you get a sense of the role that Jews have played in developing our jurisprudence.”

Oppenheimer says this is especially relevant in light of the recent overlooking of Judge David Unterhalter for a position on the Constitutional Court. “Jews have played quite a prominent role in the Concourt and the development of our law, and it seems like there’s a move to stop that by denying them access. This is a reminder of the work that Jews have done.”

He says that when conducting these interviews, he learned “an enormous amount”. “Basically, as a lawyer you really only have access to the judgements, so you can see the outcome but you don’t know what happened behind the scenes. So, it was an incredible experience to speak to people who were there. You find out things that no one else could possibly know.

“In that sense, it was a delight for me to find out the personal stories and the reasons why certain things happened. It’s kind of like being able to be backstage at a play and see the goings-on and the technical moves made by the different parties. For listeners, it’s about being able to ‘pull back the curtain’, look at an institution, and find out what really happens behind the scenes, the personal stories of the judges, and how that has played a role in the kinds of judgements they made.”

It was also a meaningful experience for the interviewees. “They really enjoyed the process, especially for those who reflected on cases that occurred quite a long time ago, or who have been retired for a long time, thinking of that era of South African history and their role in it was really important. Yvonne Mokgoro burst into tears when we interviewed her. I think it was quite powerful for her to think about why she became a judge and what her time was like at the court. And then having us reflect on it as well. She wrote the first free-speech case of the court and had quite an interesting role to play there, so her reflection on that journey was quite important for her.”

The first episode is the Zuma litigation. “I look at the contempt case and rescission application and also the Nkandla judgement,” says Oppenheimer. “I have original footage from those cases, so you can hear the judges reading out extracts from their judgements. Then I interview two advocates involved in the Nkandla case – Gilbert Marcus and Wim Trengove. Gilbert acted for Thuli Madonsela who was the public protector at the time, and Wim acted for the EFF [Economic Freedom Fighters] who brought the case to hold Zuma to account for irregular expenditure at Nkandla. It’s really the first time that the Concourt had ever held a president accountable. I include an extract from [Chief Justice Mogoeng] Mogoeng who was the judge in that case. He has this interesting passage where he talks about ‘the sword of justice chopping off the rotten head of impunity’.”

The second episode looks at the controversial issue of the death penalty. “I interview Johann Kriegler and Yvonne Mokgoro, who both sat in that case, and we talk about the arguments for and against the death penalty. Johan imposed the death penalty when he was a high court judge, and he talks about why people deserved to die according to the law at that time, but then when the law changed, you could no longer have a death penalty because we had a right to life. I interview Wim and Gilbert again. They acted for those facing the death penalty.”

The third episode is on litigation surrounding the TRC. “The political party Azapo [Azanian People’s Organisation] tried to stop the TRC on the grounds that it was limiting people’s access to courts. By granting perpetrators immunity, it meant that victims couldn’t sue civilly the people that had wronged them, so they couldn’t get financial compensation, and they said that was unconstitutional. I interview Albie Sachs who was one of the judges who heard that case. Gilbert is again involved in that. And there are some extracts from Desmond Tutu.”

This week, he released the next episode in which he interviewed Salim Nakhjavani, who was a prosecutor in the case against the Khmer Rouge after the Cambodian genocide. “We look at that as an alternative to the TRC process – if we had had a criminal trial process, and how well it did in finding the truth of what has happened in genocide cases or in cases where states have done horrible things.”

Retired Justice Albie Sachs told the SA Jewish Report that he chose to be interviewed for the podcast because “the TRC was a very important phase in the life of South Africa. It had to happen, and it had to happen then to deal openly and honestly with terrible pain, acknowledge it, and move forward to changing the country. People had to come forward and talk about the terrible things they had done. It was very experiential, very emotional, and very meaningful. It didn’t solve the problems or the pain, but it made it easier to move the country forward.”

Sachs was essentially on both sides of the process, championing the TRC process even though he is a victim who suffered at the hands of the apartheid regime. “The person who organised placing the bomb that blew me up went to the TRC, and I didn’t oppose him getting amnesty. His name was Henri, and I’ve written a lot about my encounter with him and speak a lot about it. So, it’s not as though the TRC happened in 1996 and I forgot about it, it’s been a continuous part of my life.”

He believes that people should listen to the podcast and the TRC episode in particular because “the TRC was very controversial and rightly so, and there’s still a lot of unfinished business. The podcast will help people understand it better. There are many valuable different points of view. I was touched to hear my own voice at the end as part of multiple voices. The point of the TRC was to hear multiple voices, so it’s important that the podcast contains so many perspectives. The issues are deep, meaningful, and timeless.”

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Community urged to be cautious as wave gathers speed

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The Omicron variant is hitting the Johannesburg and Cape Town Jewish communities, with numbers rising rapidly but very few hospitalisations. Those hospitalised – at this point – are mainly unvaccinated.

However, many organisations have taken precautions to stem the tide to avoid a repeat – or worse – of what happened before. The machanot and Rage festival were this week cancelled, among many other private simchas.

The number of new infections in the community have increased rapidly over the past two weeks, says Darren Kahn, the executive general manager of Hatzolah Medical Rescue. There have been 272 new cases recorded this week, with 387 active cases in the community.

“To date, thankfully, there has only been one hospitalisation and we have two long-term patients on oxygen from the third wave,” he says.

“The current numbers are fast approaching our original planned numbers, and the wave is just beginning. The Hatzolah team is working around the clock to ensure the community is well cared for.”

Though Kahn said responders were fearful of a return to the COVID-19-positive numbers experienced only a few months ago, many experts believe this variant will be far milder than any we have had before if you have been vaccinated.

“We all enjoyed a couple of COVID-19-free months, but it’s unfortunately time to start being more careful again. We urge the community to go back to the basics: get vaccinated, wear a mask, keep a social distance, and sanitise. Let’s do this and get through the next wave together.”

To date, Hatzolah has vaccinated more than 30 000 people at its vaccination site.

In Cape Town, the South African Jewish Board of Deputies and Community Security Organisation (CSO) sent out an alert to the community on the morning of Wednesday, 1 December, with the subject line: “COVID-19 warning: fourth wave is on our doorstep!”

“CSO Cape Town has seen active cases on its COVID-19 Wellness Monitoring Programme surge from 0 on Friday, 26 November, to 28 cases on Tuesday, 30 November. While little is known about this new variant, we do know that its reproductive rate is at the same level as it was at the peak of the previous waves.”

After meeting medical advisors, Chief Rabbi Dr Warren Goldstein says shuls’ safety protocols haven’t changed. “This is rather just a call to reinforce what we have done so well since the beginning of the pandemic,” he said. “The message we need to communicate to our community is that there’s no need to panic and that, working together, our shuls will be safe places for them to attend, even at this time.”

Meanwhile, the Ballito Matric Rage festival was cancelled after one day, when 32 attendees and four staff members tested positive for COVID-19.

But Ronen Klugman, the founder and director of Plett Rage, says that the festival will go ahead from 3 to 7 December, with about 900 people attending. “We’re not cancelling because we’re the last line of defence against this disaster of the new variant. Kids are already arriving – I can see them on the beach – and if we cancel, it will make the situation much worse. They will scatter, and spread all over this town, and there will be no control,” he told the SA Jewish Report.

But with the festival in place, “The only way they can get into events is if they go through our testing centre. We have the responsibility to stick to our robust plan. Everyone is vaccinated, so that’s our first buffer. They have to take a PCR test before they leave. They present their vaccine certificate and PCR test on arrival. Then they go for a rapid antigen test. They get an AR band with a chip that only works for one day. Then they get tested again. If anyone tests positive, we implement contact tracing and take any contacts out of the festival.”

Local virology expert Professor Barry Schoub told Sky News, “All the cases [of the new Omicron variant] so far have been mild to moderate cases, and that’s a good sign.”

Dr Efraim Kramer, a leading international expert in emergency medicine with a specialty in mass gatherings, told the SA Jewish Report, “At the moment, we’re still groping [for information about the new variant] because tests are being done in a laboratory. We’ll find out in the next one to two weeks exactly what its transmissibility is and what kind of clinical profile it has.”

Dr Carron Zinman, a pulmonologist at Netcare Linksfield Hospital, told the SA Jewish Report that there had been differences in the symptoms of people who had presented with the new variant.

“They are saying it’s presenting atypically. In general, people are complaining of loss of taste or loss of smell. The GPs are seeing a lot of extreme fatigue with nothing else. In terms of my patients in hospital, one came in with something unrelated, not knowing she had it. So, it’s behaving differently, and the bloods are looking different as well.”

Zinman believes the Omicron variant is the reason for most of the positive tests at the moment, and thinks the new variant is more contagious.

Kramer agrees with President Cyril Ramaphosa, who said on Sunday that South Africans need to learn to live with the virus. “The days of trying to run away from it, trying to evade it, being in lockdown, and those kinds of things are gone,” Kramer says. “It’s here almost to stay, and every time we think it’s gone away, another cousin arrives.

“I don’t think there’s anything mysterious anymore about COVID-19. The president said we were staying at level 1. His statement was exceptionally positive in what he said, and exceptionally positive in what he didn’t say, if you read between the lines. In the meantime, we’ve kept the country on level 1, so we carry on.”

Kramer encourages people to go to shul. “There hasn’t been a single COVID-19 case in 20 months in people going to shul. Probably 99% of the people coming to shul are vaccinated,” he says.

If people want to go on holiday, they can as long as they take COVID-19 into consideration in everything they do, Kramer says. “The only mandatory aspect of that lifestyle is that people must get vaccinated so that if you do get it, you don’t get it severely. Our community is highly compliant in terms of COVID-19 vaccination. That’s fantastic as it means that life can almost carry on for them.

“If they want to go on holiday, they must go on holiday. If they want to get married, they must get married. We can’t knock people around anymore. We’re going to have a generation of dysfunctional kids if we carry on this way. People must do what they want to, they must just be careful.”

Kramer has criticised the “political panic” around Omicron, saying, “They believe that by closing doors, they’re going to keep it out. What they don’t know is that it’s there already. They just don’t know who’s got it, how many have got it, and how quickly it’s going to spread.”

“Closing borders doesn’t make scientific sense,” Schoub told Bloomberg TV. “What we have to recognise is this measure is politically motivated, which is highly damaging to countries like South Africa that depend on the tourist industry.”

Kramer says unvaccinated people shouldn’t be named and shamed. “We don’t know why people haven’t been vaccinated. It could be because they choose not to, because they’re scared to have it. It could be that they’re allergic to the preservative in the vaccination and they’re not allowed to have it because they’ve been anaphylactic before.” But he warns, “The people that are landing up in intensive care are the ones that aren’t vaccinated.”

Asked if the vaccines we have protect us from the new variant, Zinman says, “All of that needs to be worked out. I think that you have to accept that there’s got to be some protection from the vaccine, because the vaccines to date have shown efficacy against all the variants.”

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Israel

SA Jewish leadership confront Israeli PM over travellers’ ordeal

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Orthodox spiritual leaders in South Africa have expressed their shock and dismay over the treatment of South African travellers turned away from Ben Gurion Airport last Friday night.

Chief Rabbi Dr Warren Goldstein, South African Rabbinical Association Chairperson Rabbi Yossi Chaikin, and the dayanim of the Beth Din of South Africa wrote to Israeli Prime Minister Naftali Bennett on 30 November expressing their unhappiness.

The group of five travellers from South Africa included two who were going to Israel to comfort the Kay family after the murder of their son and brother, Eli Kay, in a terrorist attack on 21 November.

They were in the air when Israeli authorities decided to ban South African travellers in light of a new COVID-19 variant discovered by South African scientists. On landing in Israel, they were forced onto a flight back to South Africa via Dubai on Shabbat.

“We were shocked and dismayed to hear that a group of Jewish travellers from South Africa, who arrived at Ben Gurion Airport this past Friday, were denied entry into Israel and forcibly returned to their country of origin, and as a result were compelled to desecrate Shabbat,” wrote our religious leaders.

“That this took place in the Jewish state is simply unconscionable,” they wrote. “To further compound the trauma, two of the passengers were making their way to Israel to spend Shabbat with the Kay family, who are mourning the loss of their beloved Eli in last week’s terror attack in Jerusalem. From the reports we received, no attempt was made to accommodate the passengers by allowing them to remain in quarantine over Shabbat.

“To force fellow Jews to desecrate Shabbat is a violation of the Jewish identity and Jewish values of the state,” they wrote. “The manner in which the religious rights of these individuals have been infringed isn’t something one would expect of any country, and certainly not the Jewish state. On behalf of South Africa’s rabbis and the communities we represent, we wish to record our strongest objection to the forced desecration of Shabbat.”

One of these travellers, Ilana Smith, says the incident led to more stress and trauma for the Kay family, who tried to help the travellers in spite of being in mourning. “I was going to Israel only to be there for the Kay family. I was staying nearby, and was going nowhere else. And now the Kay family had this extra stress on their hands – the last thing they needed! Kasriel Kay was phoning the rabbi in Dubai, trying to help us. My family back home went into Shabbos not knowing if I would be stuck in Dubai. There are post-traumatic repercussions from this ordeal.”

Melissa Genende was travelling to Israel from South Africa to see her grandchildren on the same flight as Smith. “We had no knowledge of the flight ban, and weren’t stopped until we arrived in Israel on Friday afternoon. Our passports were taken from us. We were marched underground and came up at the departure gate for the flight going back to Dubai.

“We were threatened that if we didn’t board the plane, the police would be called,” she said. “This in fact did happen while we explained that we didn’t want to fly on Shabbat. At this point, we had no choice but to get on the plane. I’m not fully shomer Shabbos, but I would never travel on a plane on Shabbat. I have travelled many times in my life, and always make a plan that I don’t travel on Shabbat, often with a lot of extra cost.”

She’s angry that all the other people on the plane entered Israel with no problem. “We came from South Africa on the same plane, so why were we not giving any other option? We could have gone into bidud [quarantine] for a few days. We had all been tested, and I had already prepaid for PCR tests at the airport. I understand the panic. What I don’t understand is how they make a decision for five people and let everyone else in the country.”

The group had no opportunity to get food or water while waiting in the airport. “Kosher food was also unavailable to us for the entire two flights. When we landed in Dubai, it was already Shabbos. We had nowhere to wait all night until our flight at 05:00. We managed to find a lounge that would allow us to pay $32 [R513] for four hours. There was no kosher food there. We arrived back in South Africa at 12:00 on Saturday. Our luggage didn’t arrive, and we still have no idea where it is or when will get it back.”

Genende has since been ill from dehydration and travel sickness. “I’m taking this as far as can. I’m hoping that the Israeli government will do something about the staff at the airport. At the very least, I want a new ticket to Israel. I will fight until I get answers and compensation.” Emirates, she says, won’t reimburse her as she has “used” the return flight.

Even though she was able to get home, she says she would have preferred to be stuck in Israel than to have experienced this. She says she and the other South Africans have since been asked to go to the Israeli Embassy in Pretoria to meet the ambassador. She’s waiting “with bated breath” to hear what’s said. She’s had no other communication from anyone in Israel.

Former MK and olim advocate, Dov Lipman, has worked tirelessly with his organisation, Yad L’Olim, to assist olim and their families to deal with travel restrictions throughout the pandemic. In the past few days, he has barely slept as Israel went from one extreme to the other in a matter of hours.

“It’s been a really difficult time for South African Jewry,” he says. “I hear their pain, I hear their cries. The incident last Friday was nothing short of tragic, and I use that word deliberately. It’s a tragedy when someone arrives in Israel legally and is turned away.”

He says the incident has been covered extensively by the Israeli media, “with strong criticism of the government for the way it was handled from all segments of Israel’s population. At the very least, this kind of thing won’t happen again because of the degree of criticism.”

He was involved in trying to assist the South Africans. “I had a hard time enjoying my Shabbat knowing that people were in transit to who knows where. It was very painful. I’m now even more motivated to help olim and their families around the world. I believe all of our efforts will lead to a better situation.”

In response to queries from the SA Jewish Report, the Israeli Embassy in Pretoria released an official statement. “We deeply regret the unfortunate incident that occurred at Ben Gurion Airport on 26 November when a group of South African citizens were deported and had to violate their religious beliefs. The incident took place immediately after the imposition of new strict COVID-19 regulations. The incident is being investigated, and necessary conclusions will be drawn. Needless to say, if the embassy had been informed of these events in time of the occurrence, this unfortunate chain of events could have been prevented.”

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Israel

Citizens take government to court over Miss SA bullying

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Citizens for Integrity (CFI) has accused the government and the minister of sports, arts, and culture of acting unconstitutionally and irrationally in its “bullying” of Miss SA.

The non-governmental organisation has filed papers in the North Gauteng High Court taking the government and Minister Nathi Mthethwa to task for withdrawing its support for the local beauty queen in November, and for calling for her to withdraw from the 70th Miss Universe pageant to be held in Israel in less than two weeks.

In a press statement issued this week, CFI said that as an organisation “aimed at protecting the rights of citizens and the public against abuse, unconstitutional action, and irrational government decisions which affect citizens’ rights”, it took issue with the government and the minister.

It has demanded an apology and an immediate retraction of the statement withdrawing its support for the Miss SA organisation and Miss SA, Lalela Mswane.

Mswane, a University of Pretoria LLB graduate who was born in KwaSokhulu in Richards Bay, KwaZulu-Natal, has consistently stood her ground through a steady stream of harassment and vilification by Israel-haters and politicians hell bent on scuppering her once-in-a-life time opportunity to participate on the international stage.

In spite of this, she left for Israel at the weekend in preparation for the pageant, with the full backing and support of the Miss SA organisation and countless fans who have steadfastly continued to support her in her decision to participate.

Following weeks of intimidation by anti-Israel lobbyists, Mswane, dressed in a bright yellow, summery jumpsuit left the country telling her fans, “We will Rise”, and expressing how grateful she was for the opportunity to represent her country.

The Miss SA organisation posted, “We stand united with you @lalela_mswane. You have already made us so proud, and we know you will continue to do so. We love and adore you.”

Willie Hofmeyr, the retired head of the asset forfeiture unit at the National Prosecuting Authority, and also one of the founders and directors of CFI, said this week that it was an “important issue to address”.

“We need to ensure that all citizens in the country are treated equally well and fairly. It appears as if Miss SA has not been treated fairly,” he said.

Sibongile Cele, the deputy chairperson of the African National Congress (ANC) Women’s League Johannesburg, also insisted that Miss SA’s rights had been infringed upon. “As a committed Christian, I felt it was important to look at her rights as a woman and her rights as Miss SA,” said Cele, who is also a spokesperson for the CFI.

“Her rights shouldn’t be infringed because of politics. The Miss Universe pageant shouldn’t be politicised, and as a citizen of this country, she has the right to compete in the pageant. She shouldn’t be held back, she won the title of Miss SA, and she is our ambassador,” Cele said. She isn’t afraid of a backlash from the ANC saying, “ I am a Christian before I am a member of the ANC, we report to G-d first.”

The CFI said in papers before the court that the government’s decision also “didn’t constitute a legitimate purpose of government” as it didn’t “fall within the legitimate powers and objectives conferred upon the government by the Constitution”.

“The government has not only failed, but has deliberately transgressed its obligation to respect and protect the human rights guaranteed to all in the Bill of Rights,” it said.

Although Mswane is already in Israel, the CFI launched an urgent application in the Gauteng North High Court to be heard on Tuesday, 7 December to have the government’s statement declared unconstitutional, said Cele.

She said the organisation’s attorneys had written to President Cyril Ramaphosa demanding an apology to South Africans “for exceeding the bounds of the government’s authority, and interfering in the rights of citizens”.

“The South African government’s decision to support a boycott of a country with which it has diplomatic relations and withdraw its support for a citizen – who will participate in a non-political cultural event in that country – is also irrational, especially in light of the fact that countries that don’t have diplomatic relations with Israel are allowing their citizens to participate and are furnishing them with due support,” said the CFI.

“That agents of the South African government approached Miss South Africa and attempted to coerce her to withdraw from her legitimate participation in the Miss Universe pageant is unconscionable and disgraceful by all normal standards of governance,” it said.

The decision constituted “a standard of bullying by government” and also induced “a sense of unease” that the government may arbitrarily and unconstitutionally pick on any citizen “regarded with disfavour”.

Meanwhile a smiling and ecstatic Mswane has posted pictures of herself on Instagram in Israel dressed in locally designed outfits.

After a long silence, the 24-year-old took to social media before she left, saying attending Miss Universe was “not only an honour but also a huge responsibility”.

“I am determined to serve our country proudly in the best way I can. I stand today as an empowered woman because of so many before me who fought for our voices to be heard. I feel my duty is to do the same for the women of the past, the women of today, and the women to come.

“There is no greater time to shed light on issues affecting women, to choose courage over comfort, and to be steadfast in my beliefs regarding the advancement of women and our rights.”

Mswane said she viewed her participation in the pageant as a “unique opportunity” hopefully to contribute to the process of dialogue and peace.

“I am deeply thankful to all the amazing people who have supported and uplifted me, and brought me joy and comfort during the lead-up to this moment. I wish to compete with the support of South Africans and do my country proud,” she said.

In spite of the anti-Israel lobby’s attempts to harass contestants into pulling out of the pageant, not one country is boycotting. Several have pulled out due to COVID-19, but none have withdrawn for political reasons. The Israel-haters spread fake news that countries such as Greece and Barbados had withdrawn because they were boycotting Israel, however this was proven false.

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