Taylor v Kurtstag NO and Others

• Jurisdiction: South Africa
• Judge: Malan J
• Judgment Date: 15 September 2004
• Citation: 2005 (1) SA 362 (W)
• Docket Number: 24825/03
• Counsel: F A Snyckers for the applicant. G Farber SC (with him N Segal and J W G Campbell).
• Court: Witwatersrand Local Division

Malan J:

A Introduction

[1] This is an application for interdictory relief against the first and second respondents (the head of the Beth Din and the C Johannesburg Beth Din, respectively, both referred to as the Beth Din). The other respondents are cited for their potential interest in the matter. The applicant seeks to restrain the Beth Din from publishing or participating in the publication or dissemination of an excommunication notice, a cherem, against the applicant. The main relief requested is D set out in para 1(b) of the notice of motion:

'Interdicting the first and second respondents from issuing, publishing, disseminating, allowing or encouraging the issue, publication or dissemination in any way of any cherem (excommunication notice) against the applicant - (b) in any way E founded on the disobedience of, or failure to abide by, an award by an ad hoc Beth Din of the second respondent, comprised of the third, fourth and fifth respondents, issued in respect of the applicant on 4 August 2002, or in any way founded on a failure by the applicant to pay maintenance of any kind or in any other sense founded on the applicant's conduct in respect of his matrimonial F dispute with his wife Jocelyn Anne Taylor.'

[2] In the proceedings before this Court, Mr Snyckers appeared for the applicant and Mr Farber SC, assisted by Mr Segal and Mr Campbell, for the first, second, third, fourth and fifth respondents.

B The facts G

[3] The applicant and the sixth respondent are husband and wife. During 1998, Ms Taylor instituted divorce proceedings against the applicant wherein she sought, inter alia, custody of, and maintenance for, the three minor children born of the marriage. In November 1999, Woodward AJ, pursuant to the provisions of Rule 43, inter alia, directed the applicant to pay maintenance for H the three minor children at the rate of R2 000 per month per child. The applicant failed to comply with the provisions of the maintenance order and, in December 1999, Ms Taylor launched an application to commit him to jail for contempt of court. The relief sought was opposed and the matter was referred to the hearing of oral evidence and still has to be I determined. On 1 August 2000 the applicant's estate was sequestrated.

[4] During the course of divorce proceedings, the applicant and Ms Taylor concluded an agreement of settlement, in terms whereof 'their financial, maintenance and custody disputes' were to be submitted to an J

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ad hoc Beth Din (the ad hoc Beth Din) for determination. The third and fifth respondents were A nominated as members of the Tribunal by Ms Taylor and the applicant, respectively. The fourth respondent was appointed a member by the third and fifth respondents.

[5] Prior to the commencement of the proceedings before the ad hoc Beth Din, the applicant and Ms Taylor executed a submission in the following terms: B

'Rabbinical Tribunal Submission Form

We the undersigned hereby appoint the rabbis listed below:

Rabbi Michael Katz from Johannesburg Rabbi Avrohom Cohen from Jerusalem Rabbi Boruch Dov Grossnass from Johannesburg C

to act as our chosen dayanim to resolve matters in dispute between us concerning:

(1)

All financial disagreements between us

(2)

custody and raising of our children

(3)

expenses, maintenance and education fees of our children D

(4)

controlling decisions on religious issues such as type of education, throughout the school year, vacations, social environment, entertainment etc.

The above-mentioned rabbis will arbitrate on all the above and we accept their ruling absolutely without reservation.

The chosen dayanim have no obligation to explain any reasons for their halachic ruling. E

The husband agrees to deposit a ''get'' with a third party and the chosen dayanim will have the sole decision when the ''get'' should be handed to the wife.

With the appointment of these rabbis, both parties are obligated to cease forthwith with immediate effect all claims against one another in court, and to refrain from any harmful actions against the other party including verbal denigration. F

We agree to abide by the decision of the aforementioned tribunal according to the arbitration laws of the Republic.'

[6] The ad hoc Beth Din handed down a written finding in the matter on 4 August 2002, in which it awarded custody of the children to Ms Taylor, defined the access which the applicant was to have to them, directed him to pay R250 000 in respect of 'arrears G maintenance' and directed him to pay maintenance in respect of the children in an amount of R6 000 per month. When the award was handed down by the ad hoc Beth Din, the applicant appended the following words thereto under his signature:

'I agree to the above save for clause 12 as I am not possessed of funds and can't make payment accordingly.' H

[7] Following thereon, Ms Taylor sought to have the determination made an order of Court.

[8] On 8 October 2002, the applicant launched an application to declare the order of the ad hoc Beth Din null and void (the declarator application). The first and second I respondents were not cited as parties in those proceedings. The declaration the applicant sought was based on the provisions of s 2 of the Arbitration Act 42 of 1965, which precludes the referral of matrimonial disputes and matters connected therewith to arbitration. J

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[9] It had by now become apparent to the members of the ad hoc Beth Din that the applicant had no intention of giving effect A to the terms of the determination and, on 21 October 2002, they, in their capacity as members of the ad hoc Beth Din, drafted a cherem in the following terms:

'Notice to the Public B

We the undersigned were appointed to act as a Beth Din (Zabla Arbitration) to adjudicate in the dispute between Mr Adrian Taylor (husband) and his wife Mrs Jocelyn Taylor. Both parties wilfully submitted in writing to such arbitration. We issued a ruling in the manner on 26 Av 5762/4 August 2002.

Adrian Taylor has not complied with the ruling and despite several warnings persists in his defiance of the ruling and has gone so far as to submit a plea to the civil courts to overturn the ruling. Therefore, C we the undersigned Beth Din hereby impose upon him a cherem with the authority vested in us by the Shulchan Aruch, and he is to be considered excommunicated in every manner. He may not be included in a minyan, nor allowed entry into a shul, no one may associate with him in any way nor do business with him or any of his companies as stated in Shulchan Aruch, Yoreh Deah Ch 334 para 43 and Choshen Mishpat Ch 100 D para 3.

We request of all dayanim, rabbonim, shul officers, school principals and all his associates and friends to dissociate themselves from him and to act towards him as one who is excommunicated as stated in Shulchan Aruch (ibid) and to notify the general public of his status.

Signed on 15 Cheshvan 5763/21 October 2002. E

Rabbi M Katz	Rabbi A Cohen	Rabbi B Grossnass
Rabbi	Dean	Dean
Chabad, Illovo	Yeshivat Nisfmar Israel	Kollel Yad Shaul
Johannesburg	Jerusalem	Johannesburg F

We the undersigned members of the Johannesburg Beth Din hereby endorse the above, associate ourselves in the imposition of the cherem and ask all members of our congregations to adhere to the same. M A KurtstagRosh Beth Din DayanB RapoportDayan D M IsaacsDayan S SuchardDayan'

M A Kurtstag	B Rapoport	D M Isaacs	S Suchard
Rosh Beth Din	Dayan	Dayan	Dayan' G
Dayan

They then submitted it to the first respondent, in his capacity as head of the second respondent, and to Rabbis Rapoport, Isaacs and Suchard, in their capacities as members thereof, for endorsement as shown above. H

[10] On 30 October 2002, the third, fourth and fifth respondents, through their attorney, Mr Billy Gundelfinger, advised Ms L Fisher, the applicant's attorney, that they were not opposing the relief sought by the applicant and that they would 'abide' the decision of the Court. They did not thereby intimate, or intend to intimate, that the determination lacked validity for the purposes of I the application of Jewish law. The position is described thus in para 74 of the answering affirmation:

'The attitude of the members of the ad hoc Beth Din was clearly based upon the fact that an application had been made to the above Honourable Court, which would adjudicate upon such application in accordance with the law of the land. The members of the ad hoc Beth Din had been advised that the law of the J

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land, particularly in view of s 2 of the Arbitration Act, would not recognise the validity of their ruling. They accepted that the above A Honourable Court would apply the law of the land and make an order in accordance with the provisions thereof. However such attitude was clearly not an acknowledgment that their ruling had no binding force in terms of Jewish law. Their finding had been made in accordance with Jewish law and it remained valid in the eyes of Jewish law, whether it was recognised by the law of the land or not. This was clearly B analogous to the situation where a marriage might be binding in terms of the law of the land but invalid in the eyes of Jewish law, or vice versa. In abiding the decision of the above Honourable Court the members of the ad hoc Beth Din were doing no more than leaving the question of the validity of their ruling in the eyes of the law of the land in the hands of the above Honourable Court. The issue of the validity of the ruling of the ad hoc Beth Din in the eyes of Jewish law was at no stage an issue before the above C Honourable Court. The above Honourable Court was...