(Author: Dennis Davis, Vol. 71, No. 2, Rosh Hashanah 2016)
There is a photograph of Jewish judges of what is now the Gauteng High Court taken in 2000. Nine judges feature, which meant that at that time more than 20% of the judicial complement of the province were Jews.1 It represents the high point of Jewish involvement in the South African Bench. Since those ‘glory days’ there has been a distinct decline of Jewish representatives on the Bench so that today there are only four Jewish judges in Gauteng and one on the Supreme Court of Appeal, while I am the only Jewish judge on the Western Cape High Court.
The history of the Jewish contribution to law in South Africa is, however, far more reflective of the 2000 photograph. In a lecture of this nature, it is impossible to detail the contribution of every Jewish judge and lawyer who has practised or taught in this country over the past century. Cognisant of the problem of offending some, I have nonetheless made a selection of particular emphasis on the role of lawyers in the Western Cape.
The injunction Tzedek, tzedek tirdof – ‘Justice, Justice you should pursue’ – in the book of Devarim has stimulated a range of different interpretations. Two, I believe partly explain the astounding contribution of Jews to South African law. The first is sourced in the interpretation of Rashi, who amongst other comments, suggests that there are two obligations which flow from the repetition of the word ‘Tzedek’, namely that for judges there is an obligation to seek justice and for the population at large there is an obligation to seek out or demand just courts; that is the public should not simply passively accept any judge who is appointed but need to play an active role in ensuring that justice is promoted through the appointment of judges who seek justice. The second interpretation, which is equally important, is that the double use of the word justice was designed to emphasise that not only must we achieve just ends but we must employ just means to achieve these ends.
In the Western Cape, the first Jewish judge might well have been R P Davis (no relation) who, however, never acknowledged his Judaism. Accordingly, we can claim that the first Jewish judge appointed was Joseph Herbstein. Born in Graaff-Reinet in 1897, he obtained his LLB degree at the University of Cape Town, thereafter practising at the Cape Bar where he became a silk in 1939. In late 1947, he was appointed to the Cape Bench and served until early 1963 where, at the age of 65, he retired and settled in Israel. There is more than a justifiable inference that his retirement was due to the fact that when Jackie de Villiers retired as Judge President of the Cape Supreme Court (as it was then known) in 1959 and Andrew Beyers was appointed, albeit that Herbstein was the senior judge, he had decided that “enough was enough” and accordingly resigned once he attained 15 years of service. Judge Herbstein was a passionate Zionist and after making aliyah, he continued to further the cause of Zionism. He became a governor of the Hebrew University, and on being presented with his scroll by that institution, the following was said:
His humanitarianism and sense of fairness have always impelled him to efforts to ensure that educational opportunities are open to every able young person ….Joseph Herbstein has devoted his life to the cause of justice, the dignity of man, and the needs of the Jewish people with a genuineness and an integrity that lend lustre and dimension to his every endeavour. He is a man of independent mind – innovative and outspoken – a man to respect, to admire, and to follow.
The Hebrew University of Jerusalem salutes Joseph Herbstein – eminent jurist, lifelong Zionist, and devoted friend – and welcomes him with pride and affection into the Fellowship.
Herbstein’s other major contribution to the law was the publication of Herbstein and Van Winsen, The Civil Practice of the Supreme Courts which, in its modern edition, is still widely used.
The second Jewish judge was H M (Bobby) Bloch who was only a judge between 1958 and his premature death in 1963. A brilliant forensic advocate, there were high expectations for Bloch, but health prevented him from fulfilling his judicial potential. He was also an active member of the SA Jewish Board of Deputies and the Western Province Zionist Council. Thereafter Phillip Shock, an eccentric but outstanding commercial lawyer, was appointed to the Bench, followed shortly thereafter by Gerald Friedman, of whom more further on. Harold Berman, who was a notoriously nervous advocate and a somewhat more assertive judge, spent ten years on the Bench between 1985 and 1995. Although a great friend of the reactionary Judge President George Munnik, he delivered a number of important and courageous judgments with care and style during the troubled late 1980s. Shortly after Berman, Selwyn Selikowitz was appointed. Possessed of an extraordinarily sharp intellect, he should have ended up on the highest court as the leading commercial judge of his generation. Sadly, he never quite fulfilled his great intellectual talent, and retired upon the age of 65 after twenty years of service.
Selwyn and Gerald were judges when I arrived on the bench, and shortly thereafter we were joined by Gerald Josman, a kind and thoughtful jurist who tragically died in a motor accident. One could say that, given that he was born Jewish, there were four Jewish judges at that time as Edwin King (later to become Judge President) was born a Jew but was by then a bastion of the Anglican Church, his family having long before converted.
Of all of these judges, the most outstanding was unquestionably Gerald Friedman. He was appointed as the Judge President of the Cape in 1992, having already served on the Appellate Division in Bloemfontein. He gave up this elevated position to take over the running of the Cape Supreme Court from the notorious George Munnik. Friedman had already show great courage and integrity under fire. In 1985, he delivered a minority judgment in Omar and others v Minister of Law and Order. The case was decided on the basis of an application which had been brought by a number of detainees including Dullah Omar (later to become the Minister of Justice in the democratic South Africa) for the release of detainees on the basis of an argument that they had a right to make written representations as to why they should not be detained. This meant that they were required to be provided with reasons for their continued detention. The majority judgment was delivered by Judge Vivier in which, naturally, the reactionary Munnik concurred. Friedman’s judgment is one of the great minority judgments delivered in South African legal history. It began from the premise that, unless a person’s rights are taken away by express legislation, the liberty of the individual should continue to be the governing legal principle. Accordingly, he held that the principle of audi alteram partem (the right of the other side to be heard) implied an obligation on the Minister who had detained Mr Omar to advise him of this reasons for the action so to enable the detainee to defend himself effectively.
Significantly, the judge who became far more famous than Friedman in the eyes of lay people, Richard Goldstone, was confronted with a similar case a few days later in the matter of Momoniat v Minister of Law and Order and others. Judge Goldstone found in favour of the continued detention of Mr Momoniat, a judgment standing in sharp contrast to the minority opinion of Gerald.2
As Judge President, Friedman was an extraordinary administrator, careful to balance the needs of litigants with those of his judges and fastidious in the administration of the court. He was also deeply committed to the demographic transformation of the bench. The present Judge President John Hlophe and the future Chief Justice, Sandile Ngcobo, were both appointed to the Cape bench under his Judge Presidency. I was one of the fortunate few to be mentored by him.
On the very first Friday as an acting judge in 1996, Gerald ensured that I sit with him in a matter dealing with a breach of contract. When, after the oral argument, we agreed upon the result, he informed me that I should write the judgment. Two weeks after I delivered him a draft, he gave me the finest lesson that any young judge could receive about how to write a judgment, including for whom the judgment should be written and the manner in which it should be crafted. It is a lesson for which I am enormously indebted to Gerald Friedman, as I was for much guidance that he gave me and other young judges during his term of office.
There are two other judges that require attention, as both came from the Cape. Albie Sachs, who was a member of the Cape Bar before being forced into exile, was appointed to the first Constitutional Court in 1994. It was a controversial appointment because of Sachs’ involvement in the ANC’s internal enquiry into the death of Thami Zulu, which certainly was not his greatest moment. But in a number of transformative judgments, Sachs vindicated the decision to appoint him to the highest court in the land. To this day many judges, including myself, rely particularly on his decision in Port Elizabeth Municipality v Various Occupiers which gave guidance to all courts as to how to deal with the rights of vulnerable occupiers of land. It is a luminous and eloquent exposition of the law which redounds to the credit of the Constitutional Court.
Leonard Hoffmann, born in Cape Town in 1934, was the son of Barney Hoffmann, a leading attorney and part of the firm of Sonnenberg Hoffmann and Golombik. He was awarded a Rhodes Scholarship, as a result of which he read law at Oxford University. In 1958, he returned to Cape Town and practised at the Cape Bar between 1958 and 1960 before returning to the London Bar. In 1985, he was appointed as a Judge of the High Court of England and Wales in the Chancery Division and later to the House of Lords. He was a dominant intellectual force in the Lords during his tenure. To South African lawyers he is probably best known for the work South African Law of Evidence. He wrote the first two editions, and under his formidable pen this book was one of the clearest and most useful legal text books produced in this country.
The Jewish community has also made a major contribution to Cape Bar, from the time of Morris Alexander, who was a founder of the Board of Deputies, a Member of Parliament between 1908 and 1929 and a member of the Cape Bar between 1900 and 1946. Many followed in his footsteps, more recently Sam Aaron SC, an outstanding advocate, Milton Seligson SC, who still practices and who taught me in 1974 at the University of Cape Town. He remains, in my view, the advocate who personifies the very best traditions of the bar. When Seligson appears in front of a judge he informs the Court that there are, for example, 14 cases which are relevant to the dispute required to be decided. He will then inform the Court that of these five cases do not support his argument and then he will take the judge through each of them to show you why they are either not relevant or distinguishable. A judge will search in vain for any other cases which may be relevant to the dispute. He provides, in short, the full conspectus of all the law in a manner which is truly an example to any advocate. Sadly that practice is not followed universally today.
The other figure of a similar generation is Peter Hodes SC. Some might be fooled by his ‘Rumpole of the Bailey’ manner, but this hides an extraordinary memory and formidable forensic skill. Today, Hodes is the leader of the Cape Bar in terms of seniority. He is also an extraordinary generous and kind human being. Regrettably neither Seligson nor Hodes, although both have acted as judges at the Cape High Court, accepted the invitation to a permanent appointment, where they would have made a great contribution to our jurisprudence.
Most recently, the Bar has benefitted from Geoff Budlender SC, whose entire career encapsulates the imperative of pursuing justice from the time that he was a junior lawyer at the Legal Resources Centre. Budlender is an outstanding advocate; indeed the finest advocate of the contemporary era never to have been appointed to the Bench. That he applied three times and was refused on each occasion by the Judicial Service Commission reflects appallingly on the process of appointment.
The three advocates on which I wish to concentrate on, however, are Gerald Gordon QC, Harry Snitcher QC, and Dave Meyerowitz SC, all of whom (particularly Gordon and Meyerowitz) I knew. Gerald Gordon was born in 1909. At school his academic excellence secured him the London College of Preceptors prize for the top place in the British Empire in Latin and Greek in 1924. After reading for a law degree at UCT, he read in chambers with Joseph Herbstein in 1931 and then joined the Cape Bar. His career was interrupted by the war, when he served in the Union Defence Force. After being demobilised, he returned to the Cape Bar, taking silk in 1949. Gerald was a committed liberal. He appeared in numerous political cases, including R v Abdurahman in 1950 when the latter was charged with inciting persons who were not white to commit the offence of entering the first class railway carriage reserved on routes for whites only. He also defended Neville Alexander and Fikele Bam in an important political case in the early 1960s.
Gerald was chairman of the Cape Bar in 1965 to 1967, 1967 to 1969 and again in 1972. Apart from an active practice he published the first work on insurance the South African Law of Insurance in 1936 and, with Arthur Suzman, the Law of Compulsory Motor Vehicle Insurance in South Africain 1954. He retired from legal practice in 1975 but that did not prevent him from continuing to promote democratic values including writing a series of oped pieces which I was fortunate to co-author during the 1980s about the state of repressive law. He was an excellent writer and wrote a series of novels, the last of which, Four People(1964), was concerned within the migratory labour system and the Sharpeville and Langa massacres of 1960. When he was asked as how he managed to write novels he said: “I wrote them while my learned friends in trials or opposed motions were trying to reply to my arguments”!
A wonderful feature of Gerald was his great integrity and commitment to principle. In 1958, having already been a silk for some nine years, the National Party under the Minister of Justice C R Swart was persuaded to appoint him to the Cape Bench. Gerald would have been an excellent judge and was prepared to take the appointment. Shortly after being informed that Swart was inclined to appoint him, he was contacted by Alan Paton to stand in the 1958 election in the Sea Point constituency on behalf of the Liberal Party. He knew that if he stood he would never be appointed as a judge nor was it possible that, in what was still a reactionary constituency, he would win a parliamentary seat for the Liberal Party. Indeed he garnered only 1761 votes, as he often reminded me. But he stood and gave up his opportunity to become a judge. There was no room for expediency in Gerald’s world.
Harry Snitcher was born in 1911. After his father died in 1924 his mother, to eke out a living, rented out rooms in the house to boarders. Somehow Harry found his way to SACS, matriculating, at 15 years of age, in 1926. He then graduated with a BA LLB degree in 1931. It was six months before his 21st birthday and he had to wait these six months before being admitted to the Cape Bar. Harry became a leading member of the Central Committee of the Communist Party until 1948. In 1946, along with other members of the Central Committee, he was arrested and charged with sedition. Although the charges was dropped by the National Party government when it came into power in 1948, Harry’s career as a member of the Communist Party cost him dear in later life. In 1949 he became a silk.
Harry’s career was remarkable. He was the last of the great jury advocates, which was not surprising in that his mentor was the great jury advocate Beauclark Uppington (who referred to him as the ‘Snitch’). In Harry’s early career, that is, until 1947, he appeared in 22 important Appellate Division appeals, including R v Blom, which remains the leading case with regard to the drawing of inferences. After 1947 he was counsel in 227 reported leading cases. He thus had an outstanding career but sadly never became a judge. There is little doubt that it was his political activities which prevented his appointment. Members of the bar approached the government on numerous occasions in order to secure an appointment for this leading advocate of the Cape Bar, but without success.
The third of the advocates to whom I wish to make reference is David Meyerowitz. After completing his law degree at UCT in 1937, he was offered employment at the Patent Office in Pretoria; however, at this stage he was courting his wife Eva, and Pretoria was therefore not an option. He obtained instead a position at the Masters Office in Cape Town and thus by accident acquired a knowledge of administration of estates which gave rise to the first comprehensive text law on the subject, written by him in 1949. By then, Dave was a member of the Cape Bar. Joining forces with Erwin Spiro and Aubrey Silke, he published the first journal which was devoted to Income Tax, T he Ta x pa yer. By 1961 Silke was no longer a member of the editorial board and shortly thereafter Meyerowitz and Spiro brought out an income tax text book, Meyerowitz and Spiro on Income Tax.
Dave Meyerowitz was a remarkable man. Not only was he the leading tax advocate at the Bar and not only did he publish a monthly journal T he Ta x pa yer (for almost twenty years on his own until I joined him in the mid 1980’) and maintain his two text books but, for a number of years, he was the chair of the Western Provinces Zionist Council. With Gerald Friedman, I regard Dave as my mentor, although he consistently would remind me that I was incorrect about my views on income tax! Perhaps a story which reflects Dave best is the following: One of my colleagues Dennis van Reenen, who holds the same high regard for Dave as I did, related to me how he once had a case to fight in the Appellate Division in Bloemfontein. His opponent was Meyerowitz. At that stage van Reenen, then a junior, had a pupil by the name of Jeremy Gauntlett, now one of the finest silks in the country (and another whom the JSC should have appointed to the Bench). Van Reenen generously paid for Gauntlett to accompany him to the hearing in Bloemfontein. At the airport in Cape Town, he introduced Meyerowitz to his pupil. Meyerowitz took one look at Gauntlett and said to van Reenen, “I am in no need of staff”. In many ways this anecdote reflects the character of David Meyerowitz. He was always his own man.
Of the academic community in Cape Town one person stands out, Professor Ben Zion Beinart. Ben Beinart came to the University of Cape Town after the Second World War and remained there until 1973. He was the dominant academic force at the law faculty. He taught Roman Law and Jurisprudence and attained international acclaim, particularly, for his scholarship in the area of Roman Law. During the 1950s, together with Dennis Cowen, he made a major contribution to the legal thinking behind the so called ‘coloured vote’ cases which sought to keep coloured voters on the common voters role during the turbulent period of the 1950s.
Beinart was a legendary character at UCT. One anecdote from my own personal engagement with him must suffice. It was well known that if one obtained an oral for Roman Law II, Ben’s major course, it was highly unlikely that one would pass. Returning one night from watching cricket at Newlands, after examinations had been completed, my mother informed me that Professor Beinart had phoned. I worked with the clear assumption that this was to inform me that I had an oral. Crestfallen, I realised that my academic career in law had come to an end because I was simply not prepared to repeat the subject. I ignored the call in an exhibition of ridiculous denial. Some hours later Professor Beinart called again. I apologised for not returning his call. He then asked me which school I had attended, to which I replied that I had been educated at Herzlia. He then asked, with a chuckle: had they mixed up my English and Hebrew writing! I was unaware as to what he meant until he informed me that he could not read my paper and I was required to come to his office the next day in order to read it to him and the external examiner.
When I arrived, Ben and Professor Paul van Warmelo, the external, were seated. I had not read through more than two thirds of my first answer when Beinart interrupted me to suggest that my answer was completely incorrect. Professor van Warmelo, by contrast, suggested that I was correct and that there was clear authority for my proposition. The two learned academics then engaged in an argument which must have continued for at least twenty minutes before Beinart turned to van Warmelo and said “its 13h00. I have booked at a very good restaurant”. He then said, “I think we have heard enough”. Mercifully, it was enough to pass but more so, it reflected Ben’s eccentric approach to legal education.
There are too many in Johannesburg lawyers who deserve a mention. As befits the larger Jewish community, there were far many important lawyers in Johannesburg than in Cape Town. I must mention a number of the practitioners, including Oscar Rathouse, Arthur Suzman and Sydney (now Sir Sydney) Kentridge. Probably the finest advocate produced by this country, Kentridge was a man who personified the pursuit of justice in many cases, including his memorable representation of the Biko family in the Biko inquest. Jules Browde, who died recently at the age of 97, was another giant who consistently pursued justice not only at the Bar and through his contribution to Lawyers for Human Rights but by being so exemplary a representative of the best of the Bar traditions. Jules was also prominent in the Habonim movement. Of significance was the career of Karen Blum, who was only the second woman silk at the South African Bar and went on to the Bench.3
There are judges who sat on the Appellate Division who deserve mention. They include Leopold Greenberg, a major force on the liberal Appellate bench during the 1950s, Richard Goldstone, Oscar Galgut and Solly Miller (whose appointment was, again, shamefully held up by the government because his wife was a member of the Black Sash). More recently, Ralph Zulman and Carol Lewis graced this Court.
There were many judges on the then Transvaal Supreme Court, too many to discuss.4Of the attorneys Basil Wunsh, himself among the very best and who was deservedly elevated to the Bench, told me that Natie Werksman and later Michael Katz were beyond peer. In Cape Town we have recently lost three of the best, Cyril Prisman, Mervyn Smith and John Simon, the latter two who were also leaders of the Jewish community.
I conclude with reference to two great lawyers. The first is Isie Maisels, who began practice in 1930. He initially obtained fame when he was briefed as junior to Harry Morris KC in the trial of the notorious Daisy de Melker, whom he once described as “probably the most unattractive woman I have ever seen”. Maisels became a Kings counsel in 1948. During the 1950s and 1960s he had an extraordinary career as arguably the foremost advocate in Johannesburg. He was the lead counsel in the Treason Trial, which ran for more than three years. Amongst the accused were Nelson Mandela, Walter Sisulu and Ahmed Kathrada. Maisels and his team secured their legal victory. Maisels also appeared for the defence of David Pratt on a charge of attempted assassination of Prime Minister Dr H F Verwoerd.
As a young student, I went every day to hear Maisels defend Ronald Cohen, realising how formidable a cross examiner he was.
In 1961, Maisels accepted an appointment to the Bench in South Rhodesia, where he stayed until 1963. He resigned as a judge because he would have had to enforce draconian legislation, the final piece of which was a provision which provided that if a person was found guilty of throwing a petrol bomb into a household the death penalty was mandatory. For Maisels this was unacceptable, and being a person of unbending integrity, he refused to continue as a judge and returned to the Johannesburg Bar.
Maisels was also a dominant figure on the SA Zionist Federation and Chairman of the SA Jewish Board of Deputies, at the same time as he pursued his extensive practice.
The other giant was Arthur Chaskalson, the first President of the Constitutional Court and later Chief Justice. Arthur’s political career as an advocate began when he joined the Rivonia Trial defence team. He was clearly in awe of Bram Fisher, the team’s leader. When he became Chief Justice his office was populated by Fisher’s desk. In 1979, at the height of his career as a silk, Chaskalson left practice and began the Legal Resources Centre in Johannesburg. Here, he led legal teams in a numbers of important cases, in particular in Komani N.O. v Bantu Affairs Administration Board and Oosrandse Administrasie Raad v Rikhoto. These two judgments led to the destruction of the influx control laws which had created such havoc amongst black South Africans for decades.
Arthur was an important figure in the drafting of the South African Constitution. It was therefore no surprise when, in 1994, President Mandela appointed him as President of the Constitutional Court. One of his colleagues, Kate O’Regan, encapsulates Arthur when she wrote in tribute:
Most memorable of all was his integrity. Arthur Chaskalson was that rare person whose values were reflected in everything he did. His commitment to using law as a means to achieve justice and a better life for all shone brightly in every sphere of his life. He treated everyone at the court, whether the newest researcher or the most junior administrator, with respect and courtesy. His talent for institution building, honed at the Legal Resources Centre, was employed to its full extent at the Constitutional Court. How fortunate South Africa was to have him at the helm of the Constitutional Court for its first decade with his unmatched gift for institution building and his profound commitment to constitutional values. Justice Chaskalson’s absence is keenly felt, but in mourning his passing, we should remember that ever present are the institutions to which he gave his life: the Legal Resources Centre and the Constitutional Court. Long may they be torchbearers for his values and vision.
Hopefully, this short excursus of the Jewish contribution to law in South Africa has revealed how the concept of ‘Justice, Justice you shall Pursue’ was understood by many Jewish lawyers, and that future young lawyers will follow in their footsteps.
Dennis Davis is a Judge of the High Court of South Africa and a former Chairman of the SAJBD – Cape Council. This article is adapted from his lecture given in July 2016 as part of the commemorative programme marking the 175th anniversary of the Gardens Synagogue.
NOTES
- Ezra Goldstein, Meyer Joffe, Lewis Goldblatt, Max Labe, Basil Wunsh, Phillip Borochowitz, Ivor Schwartzman, Percy Blieden and Carol Lewis
- To be fair, Goldstone did deliver a critical judgment which circumscribed the scope of the pernicious Group Areas Act and did sterling work in visiting detainees in the 1980s.
- I have omitted the outstanding academics at Wits, including Elison Kahn, David Zeffert, Carol Lewis and the brilliant Etienne Mureinik, an extraordinary public lawyer
- In Durban Ray Leon, David Friedman, Alan Magid and Philip Levinsohn graced the Bench.
