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The artist, the ConCourt judge, and RBG

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The last time retired Constitutional Court Judge Albie Sachs saw his dear friend, United States (US) Supreme Court Judge Ruth Bader Ginsburg was when he delivered a unique lace collar created by acclaimed South African artist Kim Lieberman at the end of 2018.

Bader Ginsburg died, aged 87, on 18 September after a long illness, and the world is mourning this political and feminist icon. Since she became the second woman ever to serve on the US Supreme Court in 1993, RBG (as she was affectionately called) has been a leading voice for gender equality, women’s interests, civil rights, and liberties.

Lieberman learnt about RBG in July 2018 and was taken with all that she stood for. Once she realised that the US judge collected and wore lace collars, she was determined to make one for her.

Lieberman described RBG as having challenged and transformed gender-based laws and perceptions for decades. “She must have been pivotal at the start of the feminist era,” said Lieberman “She continued to press issues of that nature. People celebrate her integrity and her stance, and what must be the dignified yet fierce way she had to uphold and place her value system.”

Lieberman contacted Sachs as soon as she could because she knew he was a close friend of RBG.

“I emailed him [in August 2018] about my idea, asking him if he had a route to get the lace collar to her. He said he would gladly take it to her himself if I could make it by November, as he was going to Washington DC then,” said Lieberman. She made it and delivered it to Sachs in Cape Town, and he personally took it to the already ailing US judge.

Sachs had been friends with RBG for about 20 years at the time, having met her at the US Supreme Court when gathering ideas for building the Constitutional Court in South Africa. After being introduced to her and invited to her chambers, visiting her became a “must-do” whenever he was in Washington DC.

RBG and her late husband, Marty, then came to visit Sachs in South Africa to see the Constitutional Court about 10 to 15 years ago. “She adored our court, loving the warmth and friendliness of the building,” he said. Her delight in the court Sachs was so involved in developing was his all-time favourite memory of her.

Because of him, RBG went on to write the foreword for Art and Justice, a book on the art collection of the Constitutional Court of South Africa. It turns out that an artwork of Lieberman was featured in the book.

When Sachs took Lieberman’s collar to RBG, he recalls having to wait a while to see her because, in spite of her ailing health, she was working out with her trainer. He smiles at the memory of how RBG “looked like this tiny person who would be blown away by the wind, but she had a vice-like grip and was incredibly strong”.

He recalls her opening the box with the collar in it, and her eyes lighting up. “She gasped, literally gasped. She said she was thrilled, and felt and touched the collar, and put it back on the soft, dark cushion and said, ‘Albie, I can’t wear this, it’s a work of art. I’m going to rather frame it’.”

Sachs told the SA Jewish Report this week, “Ruth was very careful that we shouldn’t take photographs of her wearing the lace collar as she didn’t want her station to be involved in anything commercial as in to promote Kim’s work.”

However, he said he was “so happy” to take the collar to RBG because he knew that Lieberman had created it for her out of deep respect for all she stood for. Also, he said, it was no coincidence that Lieberman was working in lace, and RBG was interested in lace collars. It made sense to him that she would want to give her this gift.

For Lieberman, the mission that connected her to RBG began in a mud bath on the Italian island of Vulcano. “I was chatting to an American woman I’d just met, and I mentioned that I make conceptual art and lace,” recalled Lieberman. “She asked if I’d heard of Judge Ginsburg. She told me that she wears lace collars to make political, feminist statements. You can just imagine the shivers I had. So many of the concepts she spoke of I embed in my lace works. I knew I had to make RBG a lace collar. I immediately also knew how it would look, and the concepts it would convey – the same concepts with which she imbues her own collars.”

Early on as a judge, RBG decided that as her male counterparts wore ties, she would wear feminine collars as a feminist stand. But feminism was only one part of this complex and fascinating woman, who also loved art and opera.

Sachs described his late friend as “very solid, grounded, firm, and decent” about being a judge, a woman, and a dear friend. “She had an extremely sharp mind, quick but not witty and smartassed – that wasn’t her style.

“She had a deep and profound sense of justice, being there to protect the vulnerable. So, although she became famous as a feminist legal advocate and strategist, which was central to her work, it didn’t stop her from engaging in other areas where people were being unfairly treated by the law.”

RBG recognised that people thought she offered a different vision of the world to that of Donald Trump, Sachs said. However, she “lacked bravado, and instead was thoughtful and modest and very determined to do what was right”.

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Mogoeng comes out swinging against apology ruling

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Chief Justice Mogoeng Mogoeng came out swinging in his appeal against Judge Phineas Mojapelo’s judgment ordering him to apologise for comments made about Israel.

Mogoeng criticised Mojapelo at every turn, describing his reasoning as “flawed and disturbingly superficial”. He said “the learned judge failed to deal with the constitutional right to freedom of expression and freedom of belief, thought, and opinion”.

In his 38-page appeal submitted to the Judicial Service Commission on 2 April 2021, Mogoeng reiterated why he had the right to express his support for both Israel and the Palestinians during a webinar hosted by the Jerusalem Post last year.

His appeal was in response to the Judicial Conduct Committee’s ruling on 4 March 2021 that he had 10 days to apologise for comments he made about Israel in the webinar. At the time, he said South Africa had a role to play in resolving the Israeli-Palestinian conflict, that he supported both peoples, and as a Christian, he had an obligation to pray for the peace of Jerusalem.

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

One of Mogoeng’s most pertinent points was that “several precautions need to be sounded to avoid the trap that His Lordship Mr Justice Mojapelo unreflectingly allowed himself to fall into”. According to the chief justice, this includes the fact that “it’s necessary to distinguish between official government policy and the policies of lobby groups and non-government organisations. And it’s necessary for decision-maker[s] to tell the difference between politics and policy, which his lordship failed to do.”

He also insisted that the judge’s “insinuation that I was possibly involved in some conspiracy with the Israeli government and ‘timed’ the webinar in such a way to undermine international law or United Nations conventions/resolutions … is a material misdirection”.

Mogoeng said there was no difference between what he said and the South African government’s approach to the Israel-Palestinian conflict. “After a thorough search, I vouch for the fact that there is no official policy of the South African government that contradicts any part of what I actually said. Even the two agreements signed by President Mandela and President Mbeki with Israel don’t contradict anything I have said. I was therefore found guilty of five complaints or counts of misconduct that turn on a non-existent official policy of the South African government towards Israel.”

He emphasised that “the supremacy of the constitution and the entitlement of all citizens, including judges and magistrates, to enjoy fundamental rights cannot be wished away. Where these rights are limited by legislation or the code, a proper explanation is called for. Judges have the constitutional right to freedom of expression, association, and religion, belief, thought, and opinion. As is the case with other citizens, these rights may be limited. But the limitations must, broadly speaking, be reasonable and justifiable. They cannot be arbitrary or whimsical.”

He went on to describe how other judges had waded into political waters, including Mojapelo himself. He also described how “my brother Dennis Davis hosted speakers, including politicians, on his then Judge for Yourself eNCA television programme about the Israeli-Palestinian political situation and a range of political controversies to which leaders of political parties were invited and participated. He was exercising his constitutional right to free expression although different views might be expressed about being a regular anchor or host of a TV programme.”

Mogoeng described how other judges had involved themselves in political controversies in Fiji, Zimbabwe, and Lesotho, “And my dear brother Cameron J [Justice Edwin Cameron] essentially said what I said on the Israeli-Palestinian situation, the real difference being, unlike me, he didn’t rely on the Bible.” Yet, none of these men were hauled over the coals for their comments or actions.

A senior member of the legal profession, speaking on condition of anonymity, said, “The grounds of appeal make some sharp points against a senior retired and respected judge. It’s most unfortunate for judges to have such a public and divisive difference – both judges firing heavy ammunition at each other as to how the other has misconstrued the law. It doesn’t do much for confidence in the law and judiciary by the public generally.” He pointed out, however, that the chief justice “makes some powerful points, which need to be taken seriously”.

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Tony Leon shrugs off attack from anti-Israel lobby

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It has been a busy time for Tony Leon, the erstwhile leader of the Democratic Alliance (DA), but one he takes in his stride.

Leon has faced a barrage of criticism from numerous quarters for his recent pro-Israel comments, and for saying in a News24 interview that former DA leader Mmusi Maimane was “an experiment that went wrong”.

The two aren’t related but coincide with the release of his fifth book, Future Tense: Reflections on My Troubled Land.

The outspoken and bold politician-turned-diplomat-turned-communications specialist caused waves among the anti-Israel lobby with his recent controversial views on South Africa’s foreign policy – or lack thereof – and its anti-Israel fixation.

In an opinion piece in the Sunday Times on 28 March titled: “Israel a handy alibi for SA’s poor foreign policy”, Leon berates the government’s numerous dubious foreign policy decisions, notably its silence on serious global issues compared to its vocal condemnation and criticism of the state of Israel.

This “fervour” of anti-Israel sentiment, he said, was “infectious” noting the “swift condemnation” by the Judicial Services Commission (JSC) of Chief Justice Mogoeng Mogoeng for his pro-Israel comments in a webinar held in June last year.

Leon said the speed it took for the Judicial Conduct Committee (of the JSC) to find Mogoeng guilty of contravening articles of the code of judicial conduct and ordering him to apologise was “breathtaking”, pointing out how other judges’ cases have taken years. He accused the JSC of being “hypocritical, lax, and dilatory in its core tasks”.

Leon lauded Israeli Prime Minister Benjamin Netanyahu’s vaccination programme, which has resulted in 70% of the country being vaccinated, leading the world in this regard.

In his piece he said, “To the extent that South Africa has a foreign policy at all, beyond a series of outdated impulses and struggle-retro gestures, Israel is the one place where President Cyril Ramaphosa, International Relations Minister Naledi Pandor, and Pretoria’s paladins can shine their human-rights credentials.”

He cited examples of some of the government’s regretful decisions, including “Silence on the slaughter in Syria; assent to concentration camps for China’s Uighurs; no entry here for His Highness the Dalai Lama; no censure for Russia’s illegal annexation of Crimea; and heralding stolen elections across the continent from Congo to Uganda,” and added that “at least Israel and its violations of the rights of Palestinians provides a handy alibi and a lonely exception to our generous support everywhere else in the world for ‘tyrannical leaders hated by their own populations’”.

Leon’s comments have elicited a seething-mad reaction from the anti-Israel chamber, which responded a week later in a burst of opinion pieces and letters in the Sunday paper.

One opined that Leon’s criticism of the country’s foreign policy and judiciary was “an attempt to defend Israel and its supporters in South Africa”. The writer said Leon used the “well-worn pro-Israeli tactic of ‘whataboutery’, deflecting attention from Israel’s treatment of the Palestinians. Another accused him of resorting to a “misleading narrative of virtue and victimhood”.

Leon this week shrugged off the attacks, telling the SA Jewish Report, “My view on the selectivity and myopia of current South African foreign policy is well founded and impeccably documented, as is the success of Israel vaccine rollout, whatever Netanyahu’s motives for it might have been. I hardly expected my view to go unchallenged, and I have no problem at all with the voluble and inevitable expression of a contrary view as contained in Sunday Times last week”.

Leon is executive chair of Resolve Communications, an advocacy company for reputational management and strategic communication. He is married to an Israeli woman, Michal.

The attacks on Leon come as no surprise to political commentator Daniel Silke, who said the African National Congress (ANC) and members of the anti-Israel lobby weren’t ready to take a giant leap into a more balanced environment regarding Israel.

“Israel is a useful rallying cry for the ruling party, which continues to beat Israel instead of having to confront tough foreign policy and global issues. This is a comfortable foreign policy angle for the ANC to employ, and plays into the old anger of Israel co-operating with the apartheid regime.”

Silke said it showed how the BDS (Boycott, Divestment, Sanctions movement) had largely influenced and infiltrated the higher echelons of foreign policy in South Africa.

“South Africa is increasingly out of touch with the changing dynamics vis a vis Israel’s relationship with not only Gulf states but also a number of African countries. South Africa is becoming an outlier in terms of its blanket condemnation of Israel. She is isolated on the continent as far as Israel is concerned, and she will have to live with the consequences.”

He said the anti-Israel lobby faced “a crisis of credibility” by continuing to propagate a particular message that was no longer the consensus in the Middle East.

“The broader macro issues of how to deal with the Abraham Accords has made life difficult for an organisation like BDS. It’s undermined by the broader diplomatic events taking place. These developments are making it difficult for the anti-Israel lobby to continue to lambast Israel when any number of Arab nations have decided to take a more co-operative stance with Jerusalem. In future, it will either have to take a more radical line which will totally exclude it from the changes, or [engage in] a more pragmatic, constructive engagement with Israel.”

Meanwhile One South Africa Movement leader Maimane hit back at Leon for telling News24 at the weekend that he was “an experiment that went wrong”, calling the statement dehumanising.

In an interview with Newzroom Afrika, Leon said the statement was made in an interview with News24 about his book, where he said “Mmusi was an experiment that went wrong as he had never committed to the party’s ideals before he joined it.”

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Albie Sachs on the handshake that shook him

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Justice Albie Sachs felt a real sense of liberation after encountering the man who orchestrated the car bombing in which he lost an arm and the sight in one eye.

Sachs told the Temple Israel Passover Freedom online event last week that his “heart [was] beating very, very fast” when apartheid soldier Henry van der Westhuizen asked to see him for the first time.

At the time, in 1996, Sachs was serving as a judge at the Constitutional Court, and the man called at reception, Sachs told the audience of the Hillbrow-based shul’s talk.

“I open the security gate, and there is this man, tall and thin like me, although younger. He is looking at me, and I’m looking at him. In his eyes, I can see [reflecting] this is the man I tried to kill and, in my eyes, you can see [reflecting] this is the man who tried to kill me. We didn’t know each other; we hadn’t fought [personally]. He was just on that side, I was on this side, and he tried to kill me.”

The men spoke extensively during a meeting in his chambers, with Van der Westhuizen boasting about his own educational success and then rise in the ranks of the army “as if he wanted a pat on the back for that”.

At the end of the meeting, Sachs told Van der Westhuizen, “Henry, normally, when I say goodbye to somebody. I shake that person’s hand, but I can’t shake your hand. Go to the Truth and Reconciliation Commission (TRC) and tell them what you know. Maybe we’ll meet one day.”

Although Van der Westhuizen jauntily strode in, he “shuffled” out.

Sachs said he forgot about the incident until sometime later when he was attending a party in Johannesburg. He heard someone calling his name, and it was Van der Westhuizen. Again, he asked to speak to Sachs.

“We went into a corner so I could hear him over the music, and he said, ‘I spoke to the TRC and I told them everything I know’. I put out my hand, and I shook his. I almost fainted. He went away beaming.

“I heard afterwards that he suddenly left the party and he went home and cried for two weeks. I don’t know if it’s true. I want to leave it as a possibility.

“For me it was more important that this former killer … can now cry because of what he did. It was liberating.

“I wanted him to enter into the new South Africa and accept [new] norms and standards. The door would be open for him now to tell the truth and become a more dignified human being, and he walked through that door.”

Sachs went on to speak about the plight of refugees, speaking of his own experience in exile in England. He described how he was first “a psychological wreck” when he went there after being tortured in prison, and then after the car bombing, he was there as a “physical wreck”.

From the British nurses who cared for him, literally picking the shrapnel out his chest, he learnt that refugees need more help than just safety and survival. “The nurses, washing my body, that laying on of hands, gave me a sense of connection with England I never had before. It was a kind of organised love.”

Sachs said this is what we as South Africans need to offer those seeking solace in fleeing their homes.

He told the audience that he had been reflecting recently on his Jewish identity and what it meant to be “a good Jew”.

Two events made him contemplate the topic.

First, he always remembered how the late Chief Rabbi Cyril Harris had spoken at former anti-apartheid activist Joe Slovo’s funeral. “At the funeral, he said Joe was a good Jew. Now that surprised me: the head of the Orthodox rabbinate is calling Joe a good Jew. It was on ethical grounds.”

The second incident was when he was visiting England at a time when there was a legal challenge to a Jewish school that had excluded the child of a converted woman. The court was asked to establish if this was in contravention of race-discrimination laws.

Then chief justice of England, Nick Phillips, asserted that he suddenly found himself in the position of having to “decide who is a Jew”.

Sachs remembers a member of the country’s Jewish Board of Deputies being called as a witness, and asserting that there were three criteria to being Jewish: to have a mezuzah; to contribute to Jewish charities; and to go to shul for at least the high holy days.

“Joe didn’t do these things – and I’ll be exactly the same. So I don’t know.”

Sachs said what was very pronounced for him was a “horror of antisemitism”.

He recalled visiting Bulgaria on holiday in 1968, and coming across two synagogues which had been hoarded by Nazis with looted memorabilia from other synagogues all over Europe as part of Hitler’s plans to build a monument to an extinct race.

“I went back to the apartment, and wept,” he said.

Others questioned why he was overwrought, saying, everyone found it horrific. “I wept and said it was a decimation of my family, my aunties and uncles whom I had never known. It’s something, in that sense, visceral for me, and very profound.”

He said his connection was in terms of Jewish experience, rather than doctrine. “It might be something to do with our grandparents living in the shtetls. The only book they would have had would be the Torah; the only school would be the cheder. [It showed] that ideas mattered.

“For those of us who were activists, ideas mattered, not just compassion, but ideas and a kind of rationality connected with justice. If that’s part of the Jewish experience, then I’m imbued with that aspect.

“I’m a proud Jew and I’m proudly secular. I don’t know what the connection is. It’s between opposites.”

He has always been certain about one thing: “My auntie Rosie’s taiglach that she made every Rosh Hashanah in a big round tin. She made the best taiglach in Cape Town!”

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