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Tuesday, October 26, 2004
Judge (in South Africa) upholds Jewish excommunication right
Beth Din has right to act against man who reneged on child maintenance
September 16, 2004
By Estelle Ellis
"A Johannesburg businessman has failed in his bid to stop a decision to excommunicate him from the Jewish Orthodox community.
Judge Frans Malan yesterday dismissed the case brought by the man whom the Jewish ecclesiastical court - the Beth Din - had decided to shun because he failed to honour his child maintenance agreements.
Beth Din attorney Billy Gundelfinger said Jewish communities all over the world were watching the outcome of this case.
Earlier, Beth Din senior counsel Gerald Farber said a ruling against them would have been like "taking a pencil and drawing a line through centuries of religious practices"
In his affidavit, the man said that issuing a cherem (an excommunication) against him would render him a pariah in his religious and cultural community.
"I will suffer extreme humiliation and ostracism and will be unable to protect my children from the effects of such humiliation and ostracism."
"It will make it impossible for me to practise my religion with other members of my community ... "
"I will be damned before my death by having my soul doomed to exclusion from a Jewish cemetery and a Jewish burial. This cherem will destroy, defame and obliterate me as an Orthodox Jew."
The head of the Beth Din, Rabbi Moshe Kurtstag, said it was only a shunning and would not affect the man's children and would not bar him from attending synagogue services.
The drama started with an arbitration decision by the Beth Din in the divorce case between the man and his wife.
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.
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.
The man's wife then laid a complaint about his non-compliance with the Beth Din's order.
As a result, he was considered a dissident and the Beth Din, after some legal wrangling, decided to excommunicate him.
He brought an interdict application to bar the Beth Din from implementing the decision.
The excommunication that the Beth Din is now free to implement contains, among others, these restrictions:
*He may not be part of a Jewish congregation.
*He may not be part of a prayer quorum.
*He may not lead communal prayer.
*He may not have a Jewish burial or be buried in a Jewish cemetery.
The man's legal team, however, argued that doing this would be unconstitutional as it infringed on their client's right to religion and right to practise religion.
In his summary of Jewish law, Judge Malan said the cherem formed part of Orthodox Judaism and that those who wished to practise the faith were obliged to demonstrate fidelity to it.
"(Those who adhere to the religion) consensually undertake to submit themselves to the discipline which has been imposed on them ..."
He said that under the circumstances it seemed reasonable and justifiable to limit the religious rights of the man because a failure to do so would have the result that the Jewish faith and community would not be able to protect the integrity of Jewish law and custom.
"A cherem is central to the faith and purports to be nothing more than the expression of the collective disdain of the community."
The judge said the terms of the cherem the Beth Din had decided to impose on the man were not constitutionally offensive, adding that he was not persuaded that there was factual evidence of bias or bad faith on the side of the Beth Din.
"It cannot be described otherwise than as being fair."
Judge Malan said freedom of religion also involved the autonomy of a particular faith in setting guidelines for the admission of members and their discipline.
He dismissed the man's application with costs.
Advocate Frank Snyckers, instructed by Lisa Heather Fisher, appeared for the man. Advocate Gerald Farber SC, assisted by advocates Nathan Segal and John Campbell, instructed by Gundelfinger, appeared for the Beth Din. - Special Writer."
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