By Adv. Craig Snoyman
South African Jewry is resilient. They know that their government is vociferously anti-Israel and that when an incident flares up in the Middle East between the Israel and its neighbours, they know to keep their heads down and try and weather the storm. This time, the captain of the ship was on the starboard, plotting a course to safety and became a target.
Two weeks ago, a three-quarter page article appeared in South Africa’s most widely read national newspaper, the Sunday Times. The headlines blazed:
This prominently placed article was written by a former politician, who is now well past his sell-by date. Once a cabinet minister in the Thabo Mbeki cabinet, his star has faded, but he tries his best to appear news-worthy whenever he can. His sure-safe recipe is knocking Israel or the Jews. He can do this because he was born a Jew and it’s therefore “acceptable”. It always makes for great conversation when a Jew publicly attacks another Jew, even if the first “Jew” has not an iota of Jewishness, save for the accident of his birth. This was the situation with our self-hating “Jew”, Ronnie Kasrils. His target was the Chief Rabbi of South Africa, Rabbi Warren Goldstein, and he could hardly fail!
The Rabbi vs the Rebel. Ronnie Kasrils’ article in the Sunday Times attacking South Africa’s Chief Rabbi, Warren Goldstein.
Kasrils, who has very publicly renounced his Jewishness, has pooh-poohed the idea that the Jews were chosen by God. He has declared that Jewishness is merely a charade for Jews to hide their racism and their Zionist exclusivity. His article, which he called an open letter to the President, was much of the same. Many didn’t read past the headline. It was a sickening headline. In fact it is exceedingly difficult to find a more disturbing headline than this, in any mainstream newspaper anywhere in the free world. It was incredible that a newspaper was prepared to print it. How does one react to big, bold in-your- face print that says – “A chief rabbi who is a disgrace to his faith and to human decency”.
The article itself was filled with the normal vitriol about Israel and the Jews, but it also made an unjustified and unheard-of attack on Rabbi Goldstein. In fact, the last time that I can remember a chief rabbi of South Africa being so viciously attacked was when Rabbi Rabinowitz attacked the Nationalist government for its policy of Apartheid. It was an uncalled for, ad-hominem attack on the Chief Rabbi and a rant against many things Israeli or Zionist. It was an article that had no place in any respectable publication. Kasrils started off his letter by referring to “the illegal occupation by Israel of Palestinian land” which was “the greatest moral issue of our time”. It only got worse from there. He referred to the anger at the pain and humiliation inflicted on the Palestinian people, to which was an offence South Africa’s core values of equality, justice and human rights. Clearly, Rabbi Goldstein had no justice or compassion of the hundreds of innocent Palestinians who perished in Israel’s “so-called precision bombing” The Chief Rabbi’s version of “the truth” about Sheikh Jarrah was the same as Apartheid’s eviction policy. Similarly the Chief’s statement that there had been many attempts to create a Palestinian state, was “sheer sophistry”. This was because Israel had colonised Palestine in 1948 and had thereafter engaged in expansion, land theft and ethnic cleansing. It was the Israeli government that had refused to be a partner for peace, while the Palestinians, even Hamas, “had gone out of their way to consider a two-state solution”. It was the Israelis that had rejected proposals, instead insisting on a Bantustan solution. The Chief Rabbi was “obfuscating” if he suggested otherwise. As for Israel’s right to defend itself against Hamas’ rockets, “Goldstein [had] callously ignored the rain of death poured into the world’s most densely populated concentration camp where two million inhabitants have no place to hide.” How can he support a “people that smash a small densely populated territory to smithereens because they sustained 12 deaths?” Kasrils did not forget to refer to the dubious quote of Richard Falk that “Palestinian resistance to occupation is a legally protected right” and that Israel was violating international law. He also scoffed at the Chief Rabbi’s reliance on “a property-dealing God who presented another peoples land to the so-called chosen” which was in stark contrast to the belief of Palestinian Christians and Muslims. He concluded by holding that “numerous devout Jews interpret the Hebrew bible very differently to Goldstein and his ilk. His views are not representative of Jews in general” and that “Goldstein’s utterances contradict the golden rule of all religions to treat others as you wish them to treat you”.
Up to his Neck. No, Ronnie Kasrils is not wearring a tallit (prayer shawl worn by Jews) but a Palestinian keffiyeh.
With the Jewish community in shell-shock, the response came in last week’s Sunday Times. Entitled “Kasrils breached acceptable boundaries of civilised discourse” virtually every leading organisation within the Jewish establishment attached its name to this public rebuke. A small photo-replica of the original article with the offensive heading was attached to the Jewish establishment’s response (just in case it could have been forgotten). In defending the Chief, Kasrils was accused of breaching acceptable boundaries, demonising and defaming the state of Israel and vilifying and crassly impugning “the integrity of the chief rabbi, Dr Warren Goldstein, the public face of the Jewish faith community in South Africa” and inflaming race relations in South Africa. Notably, the Chief Rabbi was not a signatory to the article.
Like any Jew, I know some things and I have an opinion on some things. They don’t always overlap. I have an opinion on Kasrils’ conduct (which might not be fit to publish) and I know something about the law of defamation in South Africa. My opinion based on my knowledge of defamation is that he has opened himself up to a massive lawsuit. Kasrils, who has been on the winning side of a defamation case previously, must also be acutely aware of this as well.
The law of defamation in South Africa balances the existence of various conflicting constitutional rights such as the right to privacy and dignity against the right to freedom of expression and political rights. In principle, to succeed in a defamation case one needs to prove the following:
(1) there is a statement
(2) it has been published
(3) it concerns that person
(4) it is defamatory
(5) it has injured that person in his reputation.
The test to be applied to decide whether a statement is defamatory is whether the words complained of, are reasonably capable of conveying to the reasonable reader a meaning defamatory of that person. One does not need to prove falsity. The quantification of damages is dependent on reputation and character, standing in the community and the extent of the publication.
The party being sued has a variety of defences at his disposal. The most common defence is that while the statement appears on the face of it (prima facie) defamatory, the words were used in a non-defamatory sense and special circumstances are set out. Other defences might include (a) the absence of intention to cause harm (this defence is not available to the media) or (b) that it was made in jest or (c) that the words were spoken in sudden anger as a result of provocation (referred to as “Rixa”) or (d) lack of knowledge of wrongfulness or (e) denial of wrongfulness i.e., that the defamation was not wrongful.
There are also defences that would apply where the statement was made in the discharge of an official duty such as (f) qualified privilege or where it was made in parliament being (g) absolute privilege. For statements appearing in the media, there are two defences that are invariably raised, viz. (h) truth and public interest and (i) fair comment.
When one looks at the requirements that the Chief Rabbi would have to prove, then elements (1)-(3) are self-evident. The crux of the case would be – the reasonable person test. If this is successful then element (5) falls into place. I regard myself as a reasonable person. On a simple reading of the article, I find it to be unacceptably egregious. On a deeper reading of the article, I find it to be irredeemably and grievously reprehensible and having no redeeming merit. Thus, on the Chief Rabbi’s version, I believe that he cannot but succeed. As the Chief Rabbi is the pre-eminent Jew in South Africa, I believe that he should qualify for the largest sum of damages ever awarded for defamation in South Africa.
Heading to Court. The man Kasrils has accused of as “a disgrace to human decency”, South Africa’s Chief Rabbi Warren Goldstein speaking at Nelson Mandela’s memorial ceremony on December 10, 2013. (Sky News, YouTube)
Strategically and tactically the response was brilliant. Whether intentionally or by chance (or should I say by fate, as Rabbis don’t believe in chance), with the stroke of a pen, the people of the book vindicated the Chief Rabbi. The entire upper echelons of the Jewish Community, unquestionably comprising of reasonable people, found the article to be, not only defamatory, but as exceeding the bounds of civil discourse and both vilifying and crassly impugning the chief rabbi’s integrity. One can’t get a much stronger condemnation of Kasrils’ statement than that. No doubt the Chief has a superior legal team advising him. His father, Ezra Goldstein was one of the sharpest judges on the South African bench and certainly one of the most compassionate. But the Chief Rabbi, no doubt, has a Greater Hand guiding him. I think the whole Jewish community would derive immense satisfaction in seeing him nail this ###%## BIG TIME, through the agency of this Greater Hand.
Kasrils, on the other is not without his defences. He has revelled in his article, has not denied a single word of it and his only complaint is that it was not published in its totality. Various defences are immediately ruled out. Having called the Chief Rabbi an obfuscating sophist whose views, and that of his ilk, are not representative of Jews in general, he can hardly be seen to raise a defence of absence of intention to cause insult, or that they were not intended to defame the Chief Rabbi. The defence of lack of knowledge of unlawfulness is moot. Many of our jurists hold that it is an element of intention. Whether unlawful forms part of intention or not, Kasril’s statement falls within this larger category. So Kasrils is left with a choice of two defences: truth and public interest or fair comment. To succeed in the defence of truth and public interest requires proof that both (1) the statement was true and (2) that its publication was to the benefit of the public. Just on a summary of his statement as set out, it is unlikely that he can prove either. Which leaves Kasrils with one defence, that of fair comment. The elements required to be proven for this defence are (1) that it was a comment and not a statement of fact; and (2) that the comment was “fair” (in that it does not exceed certain limits); and (3) the facts commented on were truly stated and (4) the matter was in the public interest. With several facts indisputably incorrect as well as a response from the entire Jewish establishment that Kasrils’ comment breached acceptable boundaries of civilised discourse, it will be difficult for a judge to hold that this defence has any merit either.
Last but not least, the law also provides the Chief Rabbi with a further useful line of attack. Even if Kasrils were able to show circumstances providing a justification for his statement, such a defence should fail, if it can be shown that he intended to injure the Chief Rabbi in his reputation. As my maths teacher used to say: Quod Erat Demonstratum! (Roughly translated: this which has been proved)
In defamation cases like this, not only is the writer of the article sued, but the publisher is as well. There have been cases where even the distributor and the printer of the newspaper have been sued as well. In this case, it would probably be adequate to sue Kasrils and the owners/ publishers of the Sunday Times.
Like all juicy court cases, there is invariably a twist in the tale. This one is no different. Following this notorious article, Kasrils was interviewed on a Muslim television channel. He went on record as stating that he was not responsible for the headlines that appeared above his article, that was done by the newspaper itself. It is almost inconceivable that the largest national newspaper, with top-class legal advisors on tap, could have created such a stupefyingly defamatory headline. Our Supreme Court of Appeal has made it abundantly clear that the public media cannot rely on the absence of animus injuriandi to escape liability, (although it may rely on absence of negligence.) If Kasrils is to be believed, not only would it appear that the Sunday Times had been negligent, but it would seem that a case might be made for malevolent premeditation and malice in choosing the headline. That the Sunday Times first published and then republished the headlines a week later, when the response was published, places it in a very invidious position. Not only has the headline been published twice in hard copy, but these headlines appear around the world in soft copy and remain on record.
No place to hide!
The newspaper’s legal team are going to have their work cut out for them, in the event of defamation litigation being instituted.
I am one of those South Africans who keeps my head down. I am not part of the Jewish establishment. I don’t know what the Chief Rabbi will do. In response to the article, I have bought a Jewish National Fund Certificate so that a tree will be planted in Israel in the name of Ronnie Kasrils. I really hope that the Chief Rabbi will sue and get the biggest defamation award ever issued in South Africa and then donates it to a Zionist cause in the name of Kasrils. ….and it all has to published in the Sunday Times!
About the author:
Craig Snoyman is a practising advocate in South Africa.
While the mission of Lay of the Land (LotL) is to provide a wide and diverse perspective of affairs in Israel, the Middle East and the Jewish world, the opinions, beliefs and viewpoints expressed by its various writers are not necessarily ones of the owners and management of LOTL but of the writers themselves. LotL endeavours to the best of its ability to credit the use of all known photographs to the photographer and/or owner of such photographs (0&EO) .