A row has broken out in South Africa after two Jewish lawyers, who were applying to be appointed to different national courts, were subjected to prolonged questioning about their Jewish identity, the two-state solution in the Middle East, and any connections they had to the country’s Jewish Board of Deputies (SAJBD).

Advocate Lawrence Lever and Judge David Unterhalter were both questioned at length about the level of their religious observance by members of the Judicial Service Commission (JSC). No other candidates, Christian or Muslim, were asked parallel questions.

The SABJD has noted that Advocate Lever “was asked about his level of religious observance, specifically whether he observes the Jewish Sabbath. It was made clear to the candidate by the JSC panellist that observance of the Sabbath would be problematic for his appointment”. 

He was also asked about any links he might have with the SAJBD. He told the commission that he had not been a member of the Board or any body affiliated to it. He was also asked for his opinion on the Israel-Palestine conflict.

In Judge Unterhalter’s session with the JSC, he was also questioned about links with the SAJBD. He acknowledged that he had been invited to join the Board in order to help with its welfare work during the pandemic. He had subsequently resigned after South Africa’s Black Lawyers’ Alliance had raised the matter of a potential conflict of interest between being a member of the SAJBD and any litigation the deputies might undertake in the courts — not least as he was applying to sit on the Constitutional Court.

In the event the JSC shortlisted Advocate Lever for approval by the South African president — but did not shortlist Judge Unterhalter.

SAJBD national director Wendy Kahn says it is not possible to know definitively “whether a candidate has been accepted or rejected based on his responses. The issue is that prejudicial questions have been put to them. We believe that these issues are bigger than the individuals and impact on the community as a whole.  The SAJBD is investigating the issues and exploring its options at this time”.

The SAJBD says it was “overtly prejudicial” and “unconstitutional” for the two lawyers to be asked about the level of their religious observance, adding: “Religious freedom has always been a cornerstone of our democracy… no other candidate was questioned on their religious practices, except those of the Jewish faith. Christian candidates were not asked about working on Christmas, nor were Muslim candidates asked about working on Friday afternoons or Eid.  It is appalling to think that the JSC, which is mandated to recommend judges to the highest courts, would countenance one of their panellists asking a question that is so problematic in terms of religious rights and so obviously discriminatory”. 

The SAJBD was also unhappy about questions posed to the two Jewish lawyers about the Israel-Palestinian conflict and their views on the two-state solution, questions which again were not posed to Muslim candidates for the courts.