Steve Apfel
Steve ApfelCourtesy

Brimming with the emblems of pride and public office they keep abusive reality at bay. One commanded the covid fight back, the other commends a constitution. One makes a microscopic virus guilty for his lockdown’s unholy mess. The other trusts a bill of noble thoughts to make crime a bad payer. Such are the cosy bubbles they inhabit. One is a virologist the other a judge. Both look at their pet concerns through rose-tinted eyeballs. While the medic made himself the custodian of science, the lawman endows custodial powers on a constitution. ‘Pundits of the implausible’ could be their fitting epitaph.

Did the judge, Dennis Davis, make from South Africa a negative judgement call on Israel’s government? He did, indeed he did. And it was from the same bubble, daubed in rainbow colours, from which he made a positive judgement call on his country in chaos. But attend to how the eminent jurist did so.

“The drafters of our democratic Constitution crafted a Bill of Rights for SA to ensure that the link between democracy and the rule of law be protected.” It would be foolhardy to ignore corruption and other forms of criminal activity. But take away an independent judiciary and the ability of citizens to hold the government accountable for unlawful acts, SA would be in a worse position than it is today. It should be evident that South Africa’s judiciary has become the central custodian of human rights …and has ensured that the government is held accountable for arbitrary decisions it has made.” (SA Jewish Report, 26 January 2023)

“…criminal activity”. Members of the jury! On what planet can Davis be adjudicating? It can’t be a planet we share. It would mean taking a wild and weird flight of fancy to apply that word to what’s going down. ‘Activity’ conveys criminal cells; localized; nothing endemic. The “Zondo Commission” – he knows it well, investigating State Capture – dug up grotesque goings on with the open complicity of government. In point of fact it hardly does more than provide cover for a network of patronage, grand larceny, backhanders and tender rigging. The government, in short, is busier looting than ruling.

The judge can’t help knowing that a president with a hippopotamus face presides over the putrid carcass of what was a world class economy with a currency close to par with the dollar. Davis can’t euphemise chaos into an “activity” without raising an eyebrow or two at a contemplative and careful member of the Bar modifying reality like a mediocre pundit.

It is what it is.

A movement of black liberators reduced infrastructure, public services and facilities in mint condition to a Zimbabwean category hell. Members of the jury, “activity” can’t possibly refer to successive black leaders and their comrade appointees treating the country like their fiefdom.

“Rule of law” the judge said his country has. Then we must blame it for permitting a president to rent out his government to a foreign family, and remain free to redirect the law against opponents and to kick start economic sabotage. Mark the following comparison. Davis clapped when the rule of law – Israel’s this time – empowered its Supreme Court to overturn the appointment of a non-convicted tax evader to the cabinret.

Your South African rule of law, your Honour, behaved quite the opposite way. It bit its proverbial tongue at the time the current President succeeded the traitorous one. I draw your attention to the years when he acted as Deputy President, looking over the skulking shoulder of the traitor, year after year, observing him plunder the nation. It makes him an accessory to capital crimes. Your praiseworthy rule of law failed to overturn the appointment of a complicit president, in the way that Israel’s overturned the appointment of a comparatively petty crook. It did more than that, It allowed the old traitor president to retire, cock-a-hoop, with his dirty lucre well and truly banked.

Judge Davis invests his hope and faith in a bill of rights. And the most basic right of all, the right to life. How did that one work out? Right from the time of President Mandela, South Africa became a byword for murder. Between the dawn of democracy in 1994 and today well over half a million humans had their lives terminated. Some rule of law that facilitates a ‘gangster state'.

The jurist, members of the jury, is like the virologist. Both see alternate realities. Mimicking Admiral Lord Nelson he puts his telescope to a patched eye. ‘Where – I can’t see a den of thieves converting the country to junk status.'

Now take down praise. Davis lauds an “independent judiciary”.

“Take away an independent judiciary and the ability of citizens to approach the courts to hold the government accountable for unlawful acts, South Africa wouldn’t just be in a far worse position than it is today, it wouldn’t be able to lay claim to be a democracy in substance.” (SA Jewish Report, 26 January 2023)

Hiding in the statement are three puzzling points of law.

(1) Can an independent judiciary co-exist with appointments made on skin colour that should be black? (2) Can a Jewish candidate who supports Israel be denied appointment to an independent judiciary? (3) (3)Can a failed state like South Africa– one that is lawless and has all but given up providing public services – co-exist with an independent judiciary?

By any definition South Africa is a failed state whose, “governing capacity is unable to fulfil the administrative and organizational tasks required to control people and resources and can provide only minimal services.”

To conclude. It would be a simpler matter to cultivate orchids on a rubbish tip than to maintain an independent judiciary in a state run by criminals for criminals.

Davis makes the startling statement that the “judiciary has become the central custodian of human rights.” It must be a poor custodian that allows the elect to rob the poorest of the poor. State capture alone, filched a tidy $33 billion, which the President himself admits. Another sum: the robbed were 90 % black, meaning a headcount of 20 million. Members of the Jury. State Capture alone cost every poor person $1,700: more than enough surely to escape an animal existence and live a life that humans are meant to live.

The contempt of black apparatchiks, tender riggers and looters most of them, ensconced in their ill-gotten mansions and whispering limos, knows no bounds for the blacks they robbed of a human life. Even a fellow jurist, your Honour, said it. The Pretoria High Court summed up a judgement against a raider on state coffers in this honest way:

“What is most disturbing is the total lack of dignity and shame by people in leadership positions who abuse public funds with naked greed for their own benefit without a moment’s consideration of the circumstances of fellow citizens who live in absolute squalor throughout the country with no basic services”.

Davis the jurist in a bubble could never go out on a limb like that. No outlier would be appointed to the Bench or to a government commission on tax, or to a faculty of law. Pricklier still: condemning leaders who are black may be deflected by catcalls of racism. That would not go down well for a judge desiring to hang onto plum academic positions. He must perforce be kind to the guilty, and what that entails: be cruel to the innocent.

Self-preservation is one thing. Hare-brained judgement calls are unforgiveable. If not for an independent judiciary, Davis says, the country would be in a far worse position than it is today. What could possibly be “far worse” than a lawless country?

Perhaps a jurist repaid for his pains is on terra firma when condemning the government of Israel for meddling with the Supreme Court. Could a day-dreamer about South Africa be wide awake about Israel? Not if he confuses the rule of law with rule by lawyers.

An open letter signed by Israeli economists warned Netanyahu that judicial reform would cripple the economy. “Great political power in the hands of a ruling group without strong brakes and balances” they wrote, is the wrong way to go.

A column in the Wall Street Journal ripped their arguments apart. It was, it said, “notable for two reasons.”

“First, many of the economists supported political parties that opposed Netanyahu’s free-market reforms while he was finance minister from 2003 to 2005. These reforms have allowed the economy to boom for almost two decades. Second, Israel’s unelected Supreme Court — not the Knesset the elected parliament — is the branch of government that actually holds unchecked political power. Rather than endangering economic growth the proposed judicial reforms provide a necessary check on the one court in the Western world with nearly unlimited power to dictate economic and political life.” (My italics.)

It went on:

“Energy policy is a good example of how Israel’s unchecked judiciary creates economic uncertainty. In 2016 the Israeli Supreme Court blocked the government’s plans to develop natural-gas fields, drawing huge criticism from the companies involved. The court dismissed the plan on grounds that it undemocratically bound future governments with a clause that ensured the agreement’s longevity. But in 2022 the court approved the anti-Netanyahu government’s maritime energy agreement with Lebanon, reinterpreting a Basic Law so that it didn’t require a democratic referendum in the case of an important change over territorial sovereignty.

“These decisions superficially read like legal opinions but are, in effect, political judgments. They involve sensitive matters of national security and sovereignty that everywhere else are decided by the elected branches of government. A proposal that lets a majority of the Israeli parliament overturn these decisions can hardly be regarded as antidemocratic. The economists ignore the crucial truth that the reforms will bring Israel’s judicial systems more in line with Western norms. The rule of law, it concludes, isn’t the same thing as the rule of lawyers—of unelected judges.” (my italics) Read more

Members of the jury! Select the right option: Judge Davis delivered judgement wearing his (a) court wig; or (b) party colours. If you selected the latter you have to decide what colours they might be? To guide you on party colours consider the following statement in “The Israel that is” by Mosaic Editor, Jonathan Silver.

“Jewish discontent is rooted in a false vision of Israeli society that (Netanyahu’s) government fails to embody. The Israel that some of the government’s critics support is a country that is more secular, more liberal, and more solicitous of European and American opinion than the burgeoning Israel that actually exists.” (Podcast: Elliott Abrams. American Jews and the New Israeli Government)

The Israel supported by people of the political stripe of Davis differs from the nationalist and bible-believing majority of Israelis that exist, who are more complex than those he dreams about. Oh no, he’s not alone. American Jews regard the Jewish state as the moral equivalent of a (Republican) red state” Jonathan Tobin. Heaven forfend.

We don’t mock the man for his mental daze. Like all good liberal socialists Davis expects different cultures to conform to his codes – Zulu culture or Jewish it makes no difference. He wants back the Israel of the Labour party, the party of Shimon Peres. A free and fair election decided to have the right winger Benjamin Netanyahu and the coalition that he cobbled together.

Democracy means accepting the defeat of your leftwing party. As he does for Israel, the judge desires for South Africa the destiny of a different era – the Mandela era, which turned out to be an aberration. Destiny and fate, we live to learn, play their own game.

Steve Apfel is an authority on anti-Zionism. A new book “Hitlers at heart: anti-Zionism and its believers” will be out soon.