Taylor v Kurtstag NO and Others

• Jurisdiction: South Africa
• Citation: 2005 (1) SA 362 (W)

Taylor v Kurtstag NO and Others
2005 (1) SA 362 (W)

2005 (1) SA p362

Citation	2005 (1) SA 362 (W)
Case No	24825/03
Court	Witwatersrand Local Division
Judge	Malan J
Heard	August 10, 2004; August 11, 2004
Judgment	September 15, 2004
Counsel	F A Snyckers for the applicant.; G Farber SC (with him N Segal and J W G Campbell).

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to freedom of religion, belief and opinion — Right to associate with religious community — Right of community to exclude non-conformists — Whether exercise of such right unconstitutional — Whether excommunication of member from Orthodox Jewish faith for non-compliance with Jewish law unconstitutional because excommunication having effect of limiting member's rights in terms of ss 18 and 31 of C Constitution — Member having agreed to be bound by Jewish law and excommunication being central tenet of Judaism — Limitation of member's rights by excommunication therefore justified in terms of s 36 of Constitution — Accordingly, Court declining to interdict publication of notice of excommunication. D

Headnote : Kopnota

The applicant sought to restrain the respondents from publishing or disseminating a cherem, or notice excommunicating him from the Jewish faith, on the ground that it constituted defamation and violated his rights in terms of ss 18 (right to freedom of association) and 31 (right to associate with religious community) of the Constitution of the Republic of South Africa Act 108 of 1996. The cherem was issued by the second respondent, an ad hoc E Beth Din, or Jewish Ecclesiastical Court, pursuant to a hearing of the Beth Din at which it was determined that the applicant had transgressed one of its earlier awards. The first, third, fourth and fifth respondents were members of the Beth Din and the sixth respondent was his wife.

Held, that the Beth Din had no power to enforce its judgments or awards barring a declaration that the transgressor was in a state of cherem. (Paragraphs [32] and [33] at 374G/H and 374I.) F

Held, further, that the effect of a cherem was to deprive the affected party of rights and privileges he enjoyed by virtue of his being a member of the Orthodox Jewish community, either generally or to the extent determined by the Beth Din. (Paragraph [34] at 376D.)

Held, further, that as a practising Orthodox Jew, the applicant was obliged to submit to the jurisdiction of the Beth Din and G to accept the state of cherem as determined by the Beth Din. Assumption of that obligation was, however, consensual, and was a consequence of his practising Orthodox Judaism. (Paragraph [35] at 376H and 377C.)

Held, further, that even prior to the enactment of the final Constitution, the South African courts recognised the right of a religious organisation to excommunicate in order to safeguard what it H regarded as 'fundamental and critical tenets of their faith'. (Paragraph [40] at 381C - D.)

Held, further, that the right of the group to excommunicate was entrenched in the South African law by the provisions of s 18 of the Constitution, in which was enshrined the right of freedom of association. The right of freedom of association, as it applied to the group, entitled the group to choose its associates and, I allied to that, to require its associates to conform with its principles and rules and to exclude non-conformists. (Paragraph [37] at 378F/G - I.)

Held, further, that by the same token s 31 protection could not be used by the group to shield constitutionally offensive practices or oppressive features of internal relationships. (Paragraph [46] at 386C - G.) J

2005 (1) SA p363

Held, further, that the Beth Din, in exercising its rights in terms of s 31(1), was bound to exercise such rights in a manner A that was not inconsistent with the applicant's rights. Similarly, the applicant, in exercising his rights under ss 31(1) and 15(1), was bound to do so in a manner that was not inconsistent with the rights of the other members of the Orthodox Jewish faith under ss 15, 18 and 31. Neither s 15(1) nor s 31(1) created a right to impose oneself on a religious community. The limitation of the applicant's rights by the exercise of the respondents' rights had B to be considered within the context of s 36: The purpose and importance of the limitation as referred to in s 36(1)(b) was the exercise of the rights of the respondents. (Paragraph [48] at 387I - 388B.)

Held, further, that the cherem was indeed a central tenet of Judaism. (Paragraph [56] at 392B.) C

Held, further, that the cherem was merely a 'shunning' or expression of the communal disdain of his conduct. While this clearly infringed some of the applicant's personality rights, the question was whether that infringement, or limitation, of his rights could be justified in terms of s 36 of the Constitution. (Paragraph [57] at 392F - G and 393H - I.)

Held, further, that since the applicant's subjection to Jewish law was consensual and the Jewish community had the right, in D terms of s 31, to discipline the applicant for non-compliance with Jewish law, the limitation of his rights by the cherem was indeed reasonable and justifiable in terms of s 36. Moreover, it would be offensive to observant Orthodox Jews to be forced to associate with a person seen by them as deliberately and provocatively flouting Jewish law, custom and authority. To question whether the proposed cherem or a E lesser sanction would have been appropriate would be to interfere in matters of faith, and arrogate to the Court a power not constitutionally provided for: The threshold for intervention was and had to be high. (Paragraph [58] at 393J - 394C.)

Held, accordingly, that the application had to be dismissed. (Paragraph [65] at 398D.) F

Cases Considered

Annotations

Reported cases

Abington School District v Schempp 374 US 203 (1963): referred to

Allen and Others NNO v Gibbs and Others 1977 (3) SA 212 (SE): referred to G

Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) ([1999] 4 All SA 421): referred to

Attorney-General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A): referred to

BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Others 1992 (3) SA 673 (A): applied H

Christian Education SA v Minister of Education 1999 (4) SA 1092 (SE) (1999 (9) BCLR 951): referred to

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) (2000 (10) BCLR 1051): dictum in paras [23] - [27] applied

Cronje v United Cricket Board of South Africa 2001 (4) SA 1361 (T): referred to I

Doody v Secretary of State for the Home Department and Other Appeals [1993] 3 All ER 92 (HL): compared

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658): referred to

Du Plessis v Synod of the Dutch Reformed Church 1930 CPD 403: referred to J

2005 (1) SA p364

Fidelity Guards Holdings (Pty) Ltd v Pearmain 1997 (10) BCLR 1443 (SE): compared A

Garden Cities Incorporated Association not for Gain v Northpine Islamic Society 1999 (2) SA 268 (C) ([1999] 1 All SA 171): referred to

Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) (1996 (6) BCLR 836): compared

Jones v Wolf 443 US 595 (1979): referred to B

Kotze v Kotze 2003 (3) SA 628 (T): referred to

Lakeside Colony of Hutterian Brethren v Hofer [1992] 3 SCR 165 : referred to

Law Society of the Transvaal v Tloubatla 1999 (11) BCLR 1275 (T): referred to

Long v Bishop of Cape Town (1863) 4 Searle 162 : dictum at 176 applied

M NO v M 1991 (4) SA 587 (D): referred to C

Mankatshu v Old Apostolic Church of Africa and Others 1994 (2) SA 458 (TkA): compared

Mohamed and Another v Jassiem 1996 (1) SA 673 (A): dictum at 713J - 714E applied

Nkosi and Another v Bührmann 2002 (1) SA 372 (SCA) (2002 (6) BCLR 574): dicta in paras [44], [46] - [48] and [55] compared D

Nortje en 'n Ander v Minister van Korrektiewe Dienste en Andere 2001 (3) SA 472 (SCA): referred to

Odendaal v Loggerenberg en Andere NNO (1) 1961 (1) SA 712 (O): dictum at 719C - E applied

Pennington v Friedgood and Others 2002 (1) SA 251 (C): referred to

Pitt v Pitt 1991 (3) SA 863 (D): compared E

Presbyterian Church in the United States v Mary Elizabeth Blue Hull Memorial Presbyterian Church 393 US 440 (1969): referred to

Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) (2001 (1) SACR 217 (CC); 2001 (2) BCLR 133): referred to

Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) (2002 (3) BCLR 231): dicta in paras [38] and [42] applied F

Protea Technology Ltd and Another v Wainer and Others 1997 (9) BCLR 1225 (W): compared

Ressell v Ressell 1976 (1) SA 289 (W): referred to

R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 ([1985] 1 SCR 295): referred to

R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann G [1993] 2 All ER 249 (QB): referred to

Ryland v Edros 1997 (2) SA 690 (C): referred to

S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) (1997 (2) SACR 540; 1997 (10) BCLR 1348): dictum in para [92] applied

Serbian Orthodox Diocese v Milivojevich 426 US 696 (1976): discussed H

Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en Andere 1976 (2) SA 1 (A): referred to

Visagie v State President and Others 1989 (3) SA 859 (A): compared

Ward v Cape Peninsula Ice Skating Club 1998 (2) SA 487 (C): referred to

Watson v Jones (1871) 13 Wall 679, 20 L Ed 666 (1872): referred to

Wittmann v Deutscher Schulverein, Pretoria, and Others 1998 (4) SA 423 (T) (1999 (1) BCLR 92): applied. I

Statutes Considered

Statutes

The Constitution of the Republic of South Africa Act 108 of 1996, ss 18, 31 and 36: see Juta's Statutes of South Africa 2003...