‘No legal basis’ for criminalising Israel trip

Al Jama-ah party leader Ganief Hendricks has called on South Africans to “report to the police” Members of Parliament (MPs) who visited Israel as part of a private delegation in April. He labelled the MPs “suspects”, and laid criminal charges against them at a Cape Town police station on 2 June.

Hendricks said the MPs “contravened the Rome Statute” by taking part in an “apartheid activity”, which is a “serious offence”. South Africa was therefore “obliged”, he said, to “have a criminal conviction investigated, people arrested, and [then] convicted in a court in South Africa”. But advocate Mark Oppenheimer told the SA Jewish Report there was no legal basis for this argument.

“Al Jama-ah’s claim that the parliamentarians who visited Israel have committed the crime of apartheid under the Rome Statute is unlikely to succeed in a South African court,” said Oppenheimer. “While it’s true that the crime of apartheid has been domesticated into South African law, and recent precedent confirms that individuals can be held liable under this offence, it would need to be proven that merely visiting Israel constitutes such a crime.”

Yet, “There’s no legal basis to argue that visiting a sovereign state, or asserting that the state isn’t committing apartheid [as the MPs said after their visit], meets this threshold,” Oppenheimer said.

“This isn’t a stand for justice or peace,” said South African Zionist Federation spokesperson Rolene Marks. “It’s a deliberate attempt to inflame division, suppress engagement, and import extremist ideology into South African politics. It has nothing to do with human rights and everything to do with silencing dialogue and entrenching radicalism. South Africa must reject this hateful hypocrisy, clearly and decisively.”

David Saks, speaking on behalf of the South African Jewish Board of Deputies, said, “Al Jama-ah is an unabashedly pro-Hamas lobby, with a long history of endorsing and legitimising terrorist violence and inciting antisemitic bigotry against the local Jewish community.

“The extremist ideology it espouses and the intimidation it routinely resorts to in promoting it are utterly at variance with the fundamental democratic values that underpin South African society, including Parliament itself,” Saks said. Therefore, “The effrontery of Al Jama-ah launching a legal case on the grounds of upholding the very constitutional and human rights principles that it itself so obviously flouts, is frankly astounding.”

Hendricks said the legal advice on which the charges were based came from an advocate of the High Court of South Africa, and Al Jama-ah had paid for his services. On 3 June, Al Jama-ah also proposed a motion without notice in the National Assembly that the Israeli flag be banned in South Africa. The motion was opposed.

Oppenheimer said Al Jama-ah “sought to frame public displays of the Israeli flag as analogous to the banned old South African flag, relying on local precedent. However, no South African court has ever found that Israel has committed the crime of apartheid. On the contrary, it’s unlikely to meet the Rome Statute’s definition, as Israel is a multiracial, multi-ethnic and multi-religious society that isn’t engaged in systematic oppression of specific racial groups.”

Marks said Al Jama-ah’s attempt to criminalise the trip to Israel was a “cynical publicity stunt, devoid of legal basis, democratic integrity, or moral coherence”.

Its call to prosecute elected MPs for engaging with a democratic state “isn’t just legally absurd, it’s an assault on the principles of open dialogue, parliamentary independence, and international engagement”, she said. “At the same time, Al Jama-ah raises no objection to official visits to regimes such as Iran, where political repression, censorship, and human rights abuses are routine.

“Even more perversely, it now seeks to ban the Israeli flag while freely attending events where Hezbollah flags are flown and participants openly express support for Hamas.”

Marks notes that these are internationally designated terrorist organisations responsible for brutal attacks on civilians, “yet Al Jama-ah embraces their imagery while calling for the criminalisation of South African MPs who speak to Israeli officials. Banning the flag of a democratic state while openly supporting proscribed terror groups will only deepen the damage to South Africa’s international reputation, which is already in steep decline.”

Hendricks said Al Jama-ah wanted to “criminalise apartheid activities in South Africa”, making it clear that visiting Israel was such an “activity”. He called the MPs’ Israel trip a “PR stunt”, and said Israel was “a regime that is the worst of mankind”.

However, in a letter on 4 June, Patriotic Alliance (PA) President, Gayton McKenzie, said it was the laying of criminal charges that was the “desperate publicity stunt”, and that “Al Jama-ah is free to support terrorism, but the PA will not”.

PA MPs Ashley Sauls and Millicent Mathopa went on the trip, and the PA sent another delegation of PA members to Israel in May.

McKenzie wrote that no laws were broken by visiting Israel, but by accusing the PA of “apartheid activities”, Al Jama-ah was demonstrating its sympathies with Hamas, which “continues to oppress Gaza and its people, and insists on perpetrating terrorism against the people of Israel”.

McKenzie said the PA continued to call for peace, the release of the hostages, and an end to the war, while Al Jama-ah continued to support Hamas in perpetuating terrorism and bloodshed. He reiterated the PA’s support for Israel.

Emma Louise Powell, an MP and the national spokesperson for international relations and cooperation for the Democratic Alliance (DA), was part of the delegation to Israel, along with DA spokesperson on justice, Glynnis Breytenbach; and DA MPs Katherine Christie; Bridget Masango; Nicholas Myburgh; Liam Jacobs; and Bonginkosi Madikizela.

“I reject with contempt the baseless and politically motivated charges laid by Al Jama-ah,” Powell told the SA Jewish Report. In fact, “South Africa’s Constitution guarantees the right to freedom of movement, association, and expression. I acted entirely within the bounds of South African law by visiting Israel and Palestine, something I would encourage all who are seized with finding pathways to peace to do. I have every right to explore a diversity of perspectives, and encourage others to do the same.”

She noted that it was “the height of hypocrisy” for a party whose “leaders have been filmed brandishing automatic weapons in support of an internationally designated terrorist organisation, Hamas, to accuse others of criminality for exercising constitutionally protected rights”.

Powell said this wasn’t a serious legal matter, but “a stunt by a fringe party desperate for relevance, seeking to criminalise engagement and dialogue while celebrating violence and extremism”.

She said she wouldn’t “be lectured on morality or legality by a group of irrelevant politicians who glorify terror. I remain committed to peaceful dialogue, international engagement, and the rule of law, both at home and abroad.”

African Christian Democratic Party (ACDP) MP Steve Swart, who also visited Israel, said, “I consider the criminal complaint ludicrous and having no basis in law. We in the ACDP won’t be intimidated, nor will we be silent. We will continue to stand with Israel and the Jewish people as antisemitism rises across the world, while praying for the peace of Jerusalem.”