Outcast Jew battles rabbis (In South Africa)
The Star newspaper
http://www.thestar.co.za/index.php?fSectionId=129&fArticleId=2183560
August 11, 2004 By Estelle Ellis

"A Jewish businessman has gone to the High Court to block a decision by the Johannesburg Beth Din (Jewish religious court) to excommunicate him.

The Jewish court's legal team argued yesterday that a ruling in favour of the man would be like "taking a pencil and drawing a line through centuries of religious practices". As it would be the first case of its kind worldwide, the outcome is being closely watched by global Jewish communities. The drama started with an arbitration decision by the Beth Din in a divorce. It seems that the man, who has not been named to protect his children, was ordered to pay a certain amount of maintenance by the Beth Din, but refused to do so.

'If you want to belong to the club, you must observe the rules '.

The Johannesburg High Court later declared this arbitration award to be unlawful as the High Court, by law, is the only body that can decide about maintenance and custody. His wife then laid a complaint about his non-compliance with the Beth Din's order. As a result, the man was considered to be a dissident and the Beth Din, after some legal wrangling, elected to excommunicate him. His legal team has now told the Johannesburg High Court that this must be unconstitutional as it infringes on their client's right to religion and right to practise religion. "It will destroy his dignity as a human being," Advocate Frank Snyckers said. But advocate Gerald Farber SC, appearing for the Beth Din, argued that the general principle in South African law was that the courts stay out of religious fights. "The Beth Din derives its authority from religion and is accepted by those who practise that religion," he explained. "Don't come now and say that my freedom to religion overrides everything. If you want to belong to the club, you must observe the rules," He said the excommunication issued by the Beth Din would bar the man from:

Being an official member of a synagogue;
Being part of a prayer quorum;
Leading the community in prayer;
Being a witness in matters before the Beth Din; and
Being buried in a Jewish cemetery.

"The last is the most serious in my view," Farber said. "But I don't want to get into a philosophical debate about damnation and if the right to dignity survives death."

He said the Beth Din's decision on the man "does not subvert his chosen religion. He can still be an orthodox Jew. He can still worship and observe the Torah". Farber said the law was "not a way to subvert disciplinary structures of religion or give immunity against complying with religious demands. "To hold otherwise would have the result that as far as the administration of religion and its survival are concerned, one may as well take a pencil and draw a line through centuries of religious practices."

He said the constitutional right to religion was not an absolute right, but a "community right" that gave the community the right to discipline those who did not comply with religious decrees." Otherwise one would open the door to anarchy," he said. He added that the right to religion "does not mean that I can say I have the right to freedom of religion and then I insist on eating ham in the shul (synagogue)." The right to freedom of religion included the right of the "entire orthodox Jewish population of Johannesburg to uphold Judaism", he said.

Judge Frans Malan argued with Farber: "The applicant says that it would bring about his end as a human being." "That is perverse nonsense," Farber replied. He argued that if the Beth Din had decided to punish the man by ordering his execution, the court would most certainly have had grounds to interfere. But what had happened here, Farber argued, was not "murder, it was a failure to pay maintenance".

Advocate Frank Snyckers, for the man, argued that the actions of the Beth Din had in no way corresponded with fair procedure in S[outh] A[frican] law. "No case has facts as bizarre as this," Snyckers said. The Beth Din "can with apparently unfettered discretion declare (excommunication)". Snyckers said his client had asked what principle would guide which punishment, but was not told. "The vagueness carried through the court papers lends an air of arbitrariness ... It sits uncomfortably with the rule of law, which enjoins laws to be clear and shuns vagueness as an incident of tyranny." "If they have to decide whether it is fair to excommunicate for defiance, it is only fair that they consider what the reason for the defiance was and if this was fair," Snyckers said.

The application continues."

- posted by Izak @ 2:20 AM