1 See now Heinrichs, Helmut, Franzki, Harald, Schmalz, Klaus, Stolleis, Michael (eds.), Deutsche Juristen jüdischer Herkunft, (1993)Google Scholar and, within this volume, particularly the contribution by Landau, Peter, “Juristen jüdischer Herkunft im Kaiserreich und in der Weimarer Republik”, pp. 133 sqq.Google ScholarCf. also the review-article by Konrad Redeker, (1994) Neue Juristische Wochenschrift 1 sqq.

2 Markus Arkin, Editor's Introduction, in: Arkin, Markus (ed.), South African Jewry. A Contemporary Survey, (1984) VIII.Google Scholar

3 I should also like to thank Robert Cleaver (Regensburg/Oxford) and Paul Fariam (Cape Town) for their assistance in compiling the material.

4 For general accounts of South African history, see, in particular, Wilson, Monica, Thompson, Leonard (eds.), The Oxford History of South Africa, 2 vols., (1969–1971)Google Scholar; Davenport, T.R.H., South Africa. A Modern History, (3rd ed., 1987)Google Scholar; Fisch, Jörg, Geschichte Südafrikas, (1990).Google Scholar

5 Herman, Louis, A History of the Jews in South Africa from the Earliest Times to 1895, (1930) 11 sqq.Google Scholar Generally on the history of Jewish immigration to South Africa, see Encyclopaedia Judaica, vol. 15, 1971, cols. 184 sqq.; Stephen Cohen, “Historical Background”, in: Arkin, supra n. 2, at 1 sqq.; Shimoni, Gideon, Jews and Zionism: The South African Experience 1910–1967 (1980).Google Scholar

6 Herman, supra n. 5, at 38 sqq.

7 For details, see Herman, loc. cit.; Johnson, Paul, A History of the Jews, (1987) 252 sq.Google Scholar, 275 sqq., 289 sqq.; Schama, Simon, The Embarrassment of Riches. An Interpretation of Dutch Culture in the Golden Age, (1988) 587 sqq.Google Scholar

8 Herman, supra n. 5, at 68 sqq.

9 Cf. infra n. 43 and text with nn. 132 sqq.

10 For details, Herman, supra n. 5, at 99 sqq.

11 Encyclopaedia Judaica, supra n. 5, col. 185.

12 For details, see Herman, supra n. 5, at 226 sqq.

13 Cf. generally Kaplan, and Robertson, , Founders and Followers: Johannesburg Jewry 1887–1915, (1991).Google Scholar

14 Herman, supra n. 5, at 249 sqq.; Saron, Gustav, Hotz, Louis, The Jews of South Africa. A History, (1955) 59 sqq.Google Scholar; Cohen, supra n. 5, at 3 sqq.

15 Encyclopaedia Judaica, supra n. 5, col. 186; Cohen, supra n. 5, at 3.

16 Encyclopaedia Judaica, supra n. 5, col. 187; Saron/Hotz, supra n. 14, at 250.

17 Saron/Hotz, supra n. 14, at 378 sq.; Shimoni, supra n. 5, at 97 sqq.; Cohen, supra n. 5, at 7 sq.; Hagemann, Albrecht, “Antisemitism in South Africa During World War II: A Documentation”, in: (1987) 4 Simon Wiesenthal Centre Annual 265 sqq.Google Scholar

18 For all details, see Buxbaum, Stuart, “A Profile of Jewish Immigration to South Africa between 1924–1948 and its Impact upon the Local Community”, (1983) Papers in Jewish Demography 145 sqq.Google Scholar

19 Cf. the table in Buxbaum, supra n. 18, at 148; and see Saron/Hotz, supra n. 14, at 380; Cohen, supra n. 5, at 8 sqq.

20 “The agitation reached unprecedented heights towards the end of 1936, after a group of six hundred Jews arrived from Germany in the Stuttgart. They had specifically chartered the ship in order to beat the anticipated new restrictive regulations”: Saron/Hotz, supra n. 14, at 379; Shimoni, supra n. 5, at 117 sq.; cf. also Hagemann, supra n. 17, at 272.

21 Buxbaum, supra n. 18, at 148.

22 The Jewish population has grown in absolute numbers from 114,501 in 1960, to 117,990 in 1970 and 119,220 in 1980. At the same time, it has declined in relative terms: from 3.7% of all white South Africans in 1960 to 3.2% in 1970 and 2.6% in 1980. For the figures, cf. Antony Arkin, “Economic activities%, in: Arkin, supra n. 2, at 61. For further details, cf. Allie Dubb, “Demographic picture”, in: Arkin, supra n. 2, at 23 sqq. It is estimated that in the early nineties the percentage of Jews among the white population in South Africa has dropped below 2%; information provided by the South African Embassy in Bonn.

23 Dubb, supra n. 22, at 30 sqq.; Jocelyn Heilig, “Religious expression”, in: Arkin, supra n. 2, at 95 sq.

24 Dubb, supra n. 22, at 37 (with figures); Arkin, supra n. 2, at 65 sqq.; cf. also Ronnie Mink, “Education”, in: Arkin, supra n. 2, at 117 sqq.

25 For all details, see Herman, supra n. 5, at 114 sqq., 160 sqq.; Saron/Hotz, supra n. 14, at 9 sqq. Cf. also Cohen, supra n. 5, at 2.

26 Encyclopaedia Judaica, supra n. 5, col. 186.

27 Encyclopaedia Judaica, supra n. 5, col. 193; cf. also the figures in Hellig, supra n. 23, at 102 sq. Reform Judaism had only made its South African appearance in 1933: Shimoni, supra n. 5, at 50.

28 Encyclopaedia Judaica, supra n. 5, cols. 192 sq.

29 Cohen, supra n. 5, at 5. For all details, see Saron/Hotz, supra n. 14, at 226 sqq.

30 The membership of which consisted of 330 organizations in 1969; cf. Encyclopaedia Judaica, supra n. 5, col. 193. Details as to the infrastructure of the Jewish community are provided by Aleck Goldberg, “Community infrastructure”, in: Arkin, supra n. 2, at 45 sqq. (cf. pp. 50 sqq. on the Jewish Board of Deputies).

31 Cf. Hellig, supra n. 23, at 95 sqq.

32 See Marcus Arkin, “The Zionist dimension”, in: Arkin, supra n. 2, at 79 sqq.; Shimoni, supra n. 5, at 19, 27 sqq., 169 sqq., 235 sqq.; on the “gentile Zionism” of General Smuts, Jan H. Hofmeyer et al., see pp. 47 sqq. Cf. also Encyclopaedia Judaica, supra n. 5, cols. 197 sqq.

33 For the purposes of the present article “Jew” means (unless otherwise stated) a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion. This is the definition used in the Law of Return to Israel. Cf. also Dubb, supra n. 22, at 23 sq., 41. On the place of the Jews within the complex structure of South African society, see Shimoni, supra n. 5, at 1 sqq.

34 A valuable bibliography has been compiled by Stern, Maureen Joan, South African Jewish Biography 1900–1966, (University of Cape Town Libraries, Bibliographical Series, 1972).Google Scholar

35 For an overview, cf. Encyclopaedia Judaica, supra n. 5, cols. 202 sqq.; Saron/Hotz, supra n. 14, at 348 sqq. For the position today, see Arkin, supra n. 2, at 57 sqq.

36 Herman, supra n. 5, at 210.

37 Herman, ibid., at 210 sqq.

38 Herman, ibid., at 193 sqq.

39 Herman, ibid., at 226 sqq.; Saron/Hotz, supra n. 14, at 105 sqq.

40 Saron/Hotz, supra n. 14, at 138 sqq.; Emden, Paul H., Randlords, (1935).Google Scholar

41 “‘Sammy Marks’ was an example of successful achievement in spite of illiteracy”: Innes, James Rose, Autobiography, (1949) 131.Google Scholar

42 Saron/Hotz, supra n. 14, at 362. Generally on the economic activities and the occupational structure of the South African Jewish community, Arkin, supra n. 2, at 57 sqq.

43 Herman, supra n. 5, at 84 sqq.; Innes, supra n. 41, at 26 sq. (“… the most remarkable man in th[e] Assembly”).

44 On Helen Suzman, see Berger, Nathan, Chapters from South African History, Jewish and General, (1986) 211 sqq.Google Scholar and her autobiography under the title In No Uncertain Terms, (1993).

45 Up to the early 1990's, Henry S. Gluckman (on whom see Shimoni, supra n. 5, at 157) was the only Jew to have attained cabinet rank. In May 1993 Louis Shill was appointed Minister of Housing; he is one of a number of experts from the private sector on whom the De Klerk administration has increasingly relied. Harry Schwarz, a former member of the Progressive Federal Party, is today South African ambassador in Washington. On Jews in political office, see Harry Schwarz, “Political attitudes and interaction”, in: Arkin, supra n. 2, at 139.

46 For details, see Lionel Abrahams et al., “Cultural life”, in: Arkin, supra n. 2, at 147 sqq.; cf. also Encyclopaedia Judaica, supra n. 5, cols. 207 sqq.

47 See Margaret Nabarro, “The music scene”, in: Arkin, supra n. 2, at 158 sqq.

48 Cf. generally Encyclopaedia Judaica, supra n. 5, cols. 188 sqq.; Shindler, Colin, “South Africa's Nazi Record”, (1980) 36/9 New Zealand Jewish Chronicle 7 sqq.Google Scholar; Shimoni, supra n. 5, passim. Cohen, supra n. 5, at 5 sqq.; and the careful analysis by Hagemann, supra n. 17, at 263 sqq.; cf. also, as far as the situation today is concerned, Schwarz, supra n. 45, at 140 sqq.

49 On which there is a large body of literature. It features prominently in the general histories of South Africa; cf. also, e.g., Moodie, T. Dunbar, The Rise of Afrikanerdom, (1975)Google Scholar; Adam, Heribert, Giliomee, Hermann, The Rise and Crisis of Afrikaner Power, (1979)Google Scholar, and, in a more journalistic vain, Harrison, David, The White Tribe of Africa, (2nd ed., 1986).Google Scholar

50 Moodie, supra n. 49, at 11 sqq. Calvinism, of course, provides the most important ingredient of this civil religion. In a very similar way, the Dutch had already regarded themselves “as ordained and blessed survivors of the deluge”. Simon Schama, supra n. 7, at 35 writes: “Compounded in their determination not to yield to foreign tyrants what had been laboriously wrested from the sea were the historical title of ancestral reclamation, the moral title awarded to those whose work had created the land and the scriptural title that survival against the flood was itself a token of divine ordination. This three-tiered historical self-legitimation helps account for the nationalist intransigence of kindred frontier cultures: the Boer trekkers of the South African veldt, the godly settlers of the early American frontier, even the agrarian pioneers of Zionist Palestine. All those groups saw themselves as reincarnations of the biblical Children of Israel, armed with a fresh version of the covenant to Canaan”.

51 Moodie, supra n. 49, at 15. Cf. also, e.g., Hancock, W.K., Smuts, vol. I: The Sanguine Years, (1962) 202Google Scholar: “The Hoggenheimer symbol would be an enticing theme for historical research. It pictured the uncultured cosmopolitan capitalist waxing fat on Witwatersrand gold at the expense of honest South African patriots”; Shimoni, supra n. 5, at 65 sqq.

52 Cf. Shimoni, supra n. 5, at 103 sqq.; Hagemann, supra n. 17, at 267.

53 Cf. Shimoni, supra n. 5, at 119 sqq.; Cohen, supra n. 5, at 9; cf. also Shindler, (1980) 36/9 New Zealand Jewish Cronicle 7 sqq.

54 Cf. Hagemann, supra n. 17, at 269 sqq.

55 Moodie, supra n. 49, at 167; Shimoni, supra n. 5, at 109 sqq.

56 Cf. the goals, as quoted by Moodie, supra n. 49, at 190. The English translation of “Ossewabrandwag” is “ox-wagon sentinel”. It developed into a paramilitary organization with up to 300,000 followers. Cf. Shimoni, supra n. 5, at 128 sqq.; Hagemann, supra n. 17, at 275 sq.

57 The story of how General Smuts carried South Africa into the Second World War is told by Hancock, W.K., Smuts, vol. II: The Fields of Force, (1968) 287 sqq., 308 sqq.Google Scholar

58 Shimoni, supra n. 5, at 304. Cf. also Cohen, supra n. 5, at 10 sqq.; Schwarz, supra n. 45, at 131 sqq. And see Hagemann, supra n. 17, at 271 who emphasizes that trade unions and the Communist Party of South Africa “registered a large share of well-known Jewish leaders”. This may have been due “to the socialist tradition of many East European Jews in South Africa”. The most prominent Jewish South African trade union leaders were Ben Weinbren and Solly Sachs (general secretary of the Transvaal Garment Workers' Union). For further details, see Shimoni, supra n. 5, at 157 sqq. and passim, esp. pp. 80 sqq. concerning the fact that Gandhi's major associates were Jews, and pp. 227 sqq., concerning Jewish opposition to apartheid.

59 See the Internal Security Act, No. 74/1982 (previously the Suppression of Communism Act; the relevant sections have in the meantime been repealed) according to which it was a crime to advocate, advise, defend or encourage “the achievement in the Republic of any of the objects of communism”. Communism was defined as “any doctrine, ideology or scheme: a) which is based on, has developed from or is related to the tenets of Karl Marx, Friedrich Engels, Vladimir Lenin or Mao Tse-Tung, or of any other recognised theorist in connection with or exponent of those tenets, and which aims at the establishment of any form of socialism or collective ownership; b) which aims at the establishment, by means of a class or group polarization of the community and the subsequent assumption of power by a particular class or group, of a despotic form of government under which one political party, group or organization only is recognized and all others are eliminated or prohibited; or c) which aims at bringing about political, economic, industrial or social change within the Republic in accordance with the directions or under the guidance of or in cooperation with any foreign government or any foreign or international institution or organization whose purpose or one of whose purposes (whether professed or not) is to bring about the establishment within the Republic of any economic or social system as contemplated in paragraph a) or any form of government as contemplated in paragraph b)”. For details, see Dugard, John, Human Rights and the South African Legal Order, (1978) 155 sqq.Google Scholar; Mathews, Anthony S., Freedom, State Security and the Rule of Law, (1986) 45 sqq.Google Scholar

60 On the South African judicial system and its history, see Hahlo, H.R., Kahn, Ellison, The Union of South Africa. The Development of its Laws and Constitution, (1960) 200 sqq.Google Scholar; Hutchison, Dale (ed.), Wille's Principles of South African Law, (8th ed., 1991) 30 sqq.Google Scholar; Zimmermann, Reinhard, Das römisch-holländische Recht in Südafrika, (1983) 26 sqq.Google Scholar On the legal profession and admission criteria, see Zimmermann, Reinhard, “‘Turning and Turning in the Widening Gyre…’ Gegenwartsprobleme der Juristenausbildung in Südafrika”, in: Gedächtnisschrift für Wilhelm Karl Geck, (1989) 997 sqq.Google Scholar

61 Staffed by Puisne Judges and presided over by a Judge President.

62 Thus, to mention some of the most notable examples, Tielman Roos had been Minister of Justice (1924–1929) when he was appointed Judge of Appeal (1929–1932); F.P. (Toon) van den Heever (Judge of the High Court of South West Africa 1933–1938, Judge of the Orange Free State Provincial Division 1938–1948, Judge President 1948, Judge of Appeal 1948–1956) and L.C. Steyn (Judge of the Transvaal Provincial Division 1951–1955, Judge of Appeal 1955–1959, Chief Justice 1959–1971) both came from the civil service.

63 On the training of the magistrates, see the Commission of Inquiry into the Structure and Functioning of the Courts, 5th and Final Report (Hoexter Report), (1983) 300 sqq.

64 Statistics kindly provided by Professor Ellison Kahn and estimated by him to be 95% accurate. Cf. also the statistics (relating to 1986) supplied in Kahn, (1986) 14 Jewish Affairs 36.

65 For details, see Alexander, Enid Asenath, Morris Alexander, A Biography, (1953).Google Scholar

66 Cf. Zimmermann, Reinhard, (1981) 2 Afrika Recht und Wirtschaft 71 sq.Google Scholar and “In Memoriam: Erwin Spiro”, (1992) 109 South African Law Journal 124 sqq. His main contributions to legal literature are a textbook on The Law of Parent and Child, (first published in 1950, 4th ed., 1985) and a collection of essays published in 1973 under the title Conflict of Laws.

67 The Taxpayer's Permanent Volume on Income Tax in South Africa and South West Africa, (first published in 1962, 2nd ed., 1970); since 1992 under the title oîMeyerowitz and Spiro on Income Tax. Meyerowitz is also editor-in-chief of The Taxpayer. The other title is The Law and Practice of Administration of Estates, (first published in 1949, now loose-leaf).

68 Gordon, and Getz, , The South African Law of Insurance, (first published in 1956, 4th ed., 1993, by Davis, D.M.).Google Scholar

69 His three best selling novels are Let the Day Perish, (1952), The Crooked Rain, (1954), and Four People, (1964).

70 Born 1926, called to the bar in 1949, SC in 1965. He was Judge of Appeal in Lesotho and Swaziland for three years, and then set up a joint practice in London and Cape Town. Aaron is the co-author of Jones and Buckle, The Civil Practice of the Magistrates' Courts in South Africa, now in its 6th edition.

71 One of the most interesting characters of the Natal Bar (1946–65), previously member of the Johannesburg Bar (1925–31) and attorney in Johannesburg (1931–39), was Henry John May QC. His name was originally Herzl Joshua Schlosberg. He was coauthor of Kennedy, W.P.M., Schlosberg, H.J., The Law and Custom of the South African Constitution, (1935)Google Scholar (of which a third edition appeared in 1955, this time by Henry John May).

72 See, in particular, Kahn, Ellison, “The Jewish Contribution to the Law and Legal Practice in Johannesburg”, (1986) 43 Jewish Affairs 32 sqq.Google Scholar

73 On Morris, see Bennett, Benjamin, Genius for the Defence: Life of Harry Morris, K.C., (1959)Google Scholar; Kahn, Ellison, Law, Life and Laughter. Legal Anecdotes and Portraits, (1991) 176 sqq.Google Scholar; Berger, supra n. 44, at 202 sqq. And see, in particular, Morris's memoirs, published under the title The First Forty Years in 1948.

74 Bennett, supra n. 73, at 10.

75 Kahn, supra n. 73, at 184. The judgment was delivered by Mr. Justice Greenberg (on whom see infra sub VI. 2.).

76 Kahn, supra n. 73, at 181.

77 When asked after the trial whether Broughton had in fact shot Erroll, Morris is said to have replied: “My God, I quite forgot to ask”.

78 On whom see “Valediction, by a Friend”, (1989) 106 South African Law Journal 534 sqq.

79 First published in 1969, 4th ed., 1993, revised and updated by H. Daniels.

80 Kahn, Ellison, “Jews who have Risen to Eminence in South African Law”, in: Feldberg, Leon (ed.), South African Jewry, (1965) col. 76.Google Scholar

81 Suzman is the co-author (with Denis Diamond) of a scholarly work on the Holocaust entitled Six Million Did Die: The Truth Shall Prevail (2nd ed., 1978).

82 For details, see Kahn, (1986) 43 Jewish Affairs 33 sqq.; idem, supra n. 80, cols. 77 sq. as well as idem, supra n. 73, at 216 (Rosenberg), at 54 (Ettlinger), at 85 sq. (Hanson), at 227 sqq. (Shacksnovis), at 261 sq. (Suzman). On Ettlinger, cf. also Ellison Kahn, (1960) 77 South African Law Journal 136 sqq.; on Suzman, cf. H.H. Nestadt, (1985) 102 South African Law Journal 320 sqq.; Kahn, (1986) 43 Jewish Affairs 37. Prominent Jewish advocates at the Johannesburg bar today include Jules Browde SC, Clive Z. Cohen SC, Michael Kuper SC, Max B. Labe SC, Hiram Z. Slomowitz SC and Aaron Mendelow SC (today the senior practising silk in the country). Jules Browde, incidentally, was also one of the founder members of Lawyers for Human Rights in 1979 and he has been the National President of that organization since the mid-1980's.

83 Ellison Kahn, (1971) 88 South African Law Journal 280 sqq.; idem, supra n. 73, at 203 sq.

84 Kahn, (1971) 88 South African Law Journal 283.

85 Incorporated Law Society, Transvaal v. Mandela, 1954 (3) SA 102 (T).

86 Cf. Chaskalson, Arthur, “The Legal Resources Centre: Why it was Established and What it Hopes to Achieve”, (1980) De Rebus 19 sqq.Google Scholar

87 Komani NO v. Bantu Affairs Administration Board, Peninsula Area, 1979 (1) SA 508 (C); 1980 (4) SA 448 (A).

88 Oos-Randse Administrasieraad en 'n ander v. Rikhoto, 1983 (4) SA 595 (A).

89 Cf. Chaskalson, Arthur, “The Past Ten Years: A Balance Sheet and Some Indicators for the Future”, (1989) 3 South African Journal on Human Rights 293 sqq.CrossRefGoogle Scholar

90 S. v. Khanyile, 1988 (3) SA 795 (N); Rudman v. S., 1988 (3) SA 343 (A). Cf. the contributions sub “Focus on Rudman”, (1992) 8 South African Journal on Human Rights 90 sqq.

91 Cf. S. v. Baleka and others (4), 1988 (4) SA 688 (T); S. v. Malindi and others, 1990 (1) SA 962 (A). The appellants had been tried on charges of treason, alternatively terrorism in the Transvaal Provincial Division. The trial had started before a Judge and two assessors, but some 17 months after it had commenced the Judge ruled that one of the assessors had become unable to act in that capacity. He based this ruling on the fact that the assessor (who, incidentally, was Professor W.A. Joubert, a very well-known emeritus Professor of Private Law of the University of South Africa; cf. the Huldigingsbundel vir W.A. Joubert, (1988) had signed a petition drawn up by the United Democratic Front. Neither of the parties to the trial was granted an opportunity of debating the matter before the ruling was given. The trial then proceeded before the Judge and the other assessor; in the end, the accused were found guilty, some of treason, others of terrorism. In an extraordinary outburst, reported in 1988 (4) SA 688 (T) 705 sqq. the presiding Judge insinuated that the “defence team” (with Chaskalson et al.) had acted “foolishly, irresponsibly, [and] dishonourably”. But see, as far as these charges are concerned, the remarks by Corbett, CJ, reported in 1990 (1) SA 962 (A) 977 sq. The Chief Justice felt compelled to express his regret that counsel for the State should, even before the Appellate Division, have persisted in an attack upon the conduct and bona fides of the appellants' legal respresentatives. For an account of the trial, see also D. Davis, (1990) 6 South African Journal on Human Rights 79 sqq.

92 1987 (3) SA 859 (A); on which see the damning criticism by Dugard, , Rabie, , Mathews, , Baxter, , McQuoid-Mason, , Davis, , Van der Leeuw, and Van der Vyver, in (1987) 3 South African Journal on Human Rights 295 sqq.CrossRefGoogle Scholar

93 An honour so far only bestowed on one other South African, Jan Smuts. For further detail and comment, see Kahn, Ellison, (1985) 102 South African Law Journal 542 sqq.Google Scholar

94 On Maisels, see Kahn, , (1986) 43 Jewish Affairs 39Google Scholar; (1993) 110 South African Law Journal 141 sqq.; and Kentridge, Sydney, “Isie Maisels — A Personal Tribute”, (1993) 6 Consultus 71 sq.Google Scholar

95 As quoted in (1993) 110 South African Law Journal 142.

96 Cf. (1992) De Rebus 885.

97 (1993) 6 Consultus 71.

98 Kahn, , (1986) 43 Jewish Affairs 39.Google Scholar

99 1958 (4) SA 575 (A).

100 For accounts of the trial, see Dugard, supra n. 59, at 213 sq.; Kentridge, Sydney, “The Pathology of a Legal System: Criminal Justice in South Africa”, (1980) 128 U. Penn. L.R. 607 sq.Google Scholar Of the 156 accused, 23 were Whites, more than half of them Jews: Shimoni, supra n. 5, at 227 sq. In another spectacular trial of the early 60's, the Rivonia trial, all the five Whites among the accused were Jewish: Shimoni, at 231 sq.

101 On Kentridge, see Kahn, , (1986) 43 Jewish Affairs 39 sq.Google Scholar On his father, see Shimoni, supra n. 5, at 72, 87 sq.

102 S. v. ffrench-Beytagh, 1972 (3) SA 430 (A). ffrench-Beytagh was charged under the Terrorism Act, inter alia, with providing funds for persons charged with political offences. See Dugard, supra n. 59, at 245 sq., 348 sq.

103 1968 (2) SA 284 (RAD). Cf. Zimmermann, Reinhard, “Das römisch-holländische Recht in Zimbabwe”, (1991) 55 RabelsZ 508 with further references.Google Scholar

104 The Times, 27 July 1993 (“A case of youth versus experience”).

105 Another South African Jewish advocate who has had a distinguished career in England is Leonard Hubert Hoffmann. He was called to the Bar (Gray's Inn) in 1964 and became QC in 1977 and Judge of the Courts of Appeal of Jersey and Guernsey in 1980. In 1985 he was appointed to the High Court, Chancery Division, and in 1992 to the Court of Appeal. He is co-author of Hoffmann's, L.H. and Zeffertt's, D.The South African Law of Evidence, (4th ed., 1988).Google Scholar

106 Classen, C. J., “Retain the Bar and Side-Bar”, (1970) 87 South African Law Journal 25.Google Scholar

107 For an assessment from a modern South African point of view, see Corder, Hugh, Judges at Work. The Role and Attitudes of the South African Appellate Judiciary, 1910–50, (1984).Google Scholar

108 Cf. the comprehensive study by Forsyth, C.F., In Danger for their Talents. A Study of the Appellate Division of the Supreme Court of South Africa from 1950–80, (1985).Google Scholar

109 On which, see Beinart, Ben, “The South African Appeal Court and Judicial Review”, (1958) 21 Modern L. R. 587 sqq.CrossRefGoogle Scholar; Hahlo/Kahn, supra n. 60, at 151 sqq.; van Wyk, D.H., (1980) 28 Jahrbuch des öffentlichen Rechts der Gegenwart 677 sqq.Google Scholar

110 On whom, see Cameron, Edwin, “Legal Chauvinism, Executive-Mindedness and Justice — L.C. Steyn's Impact on South African Law”, (1982) 99 South African Law Journal 38 sqq.Google Scholar

111 On whom, see Kahn, Ellison, “Oliver Deneys Schreiner: A South African”, in: Fiat Iustitia, Essays in Memory of Oliver Deneys Schreiner, (1983) 1 sqq.Google Scholar

112 Forsyth, supra n. 108, at 236.

113 Kentridge, Sydney, “Telling the Truth about Law”, (1982) 99 South African Law Journal 652.Google Scholar

114 For details, see Zimmermann, Reinhard, “‘Turning and Turning in the Widening Gyre…’. Gegenwartsprobleme der Juristenausbildung in Südafrika”, in: Gedächtnisschrift für Wilhelm Karl Geck, (1989) 1007 sqq.Google Scholar

115 Cf. e.g. the Report of the Hoexter Commission, supra n. 63, at 68 sqq. Mr. Justice Leon of the Natal Provincial Division (a Jew) has resigned his position officially, for health reasons, but political considerations are rumoured to have played a role. “What has happened over the years”, he is reported to have said, “is that the rule of law has been eroded and the powers of the Supreme Court have in that way been reduced … we have to a large extent become triers of cases” (Cape Times, 22 June 1987).

116 Cf. e.g. Wacks, R., “Judges and Injustice”, (1984) 101 South African Law Journal 266 sqq.Google Scholar

117 Schreiner, JA, (on whom, see supra n. 111) certainly thought that his career “had been helped by the retarding effect of anti-Semitism on the career of others”: Forsyth, supra n. 108, p. 6 and, especially, the quotations on p. 27.

118 Kahn, supra n. 80, cols. 71 sq.; Herman, supra n. 5, at 204 sq.

119 Kahn, supra n. 80, col. 81. But by the time he was appointed judge, Benjamin had left Judaism and become a Christian Scientist (private communication by Professor Kahn). Benjamin had previously been professor of law at the South African College (which subsequently became the University of Cape Town); cf. Cowen, D.V., “The History of the Faculty of Law, University of Cape Town — A Chapter in the Growth of Roman-Dutch Law in South Africa”, (1959) Acta Juridica 8 sqq.Google Scholar

120 Kahn, , (1986) 43 Jewish Affairs 33.Google Scholar On Greenberg, cf. further Mulligan, G.A. (1955) 72 South African Law Journal 1 sqq.Google Scholar; (1964) 81 South African Law Journal 405 sqq.; Kahn, supra n. 80, cols. 80 sqq.; Kahn, supra n. 73, at 70 sqq.; Corder, supra n. 107, at 32, 43.

121 Kahn, Essays Schreiner, supra n. 111, at 65.

122 Cf. supra n. 110.

123 Kahn, Essays Schreiner, supra n. 111, at 65.

124 Kahn, supra n. 80, col. 82.

125 Feldman (Pty.) Ltd. v. Mall, 1945 AD 733 (776).

126 On whom, see Kahn, , (1986) 43 Jewish Affairs 33Google Scholar; idem, supra n. 80, cols. 83 sq.; idem, supra n. 73, at 171 sqq.

127 Cf. supra, III. 3.; cf. also Hancock, supra n. 57, at 290.; Shimoni, supra n. 5, at 140 sq.

128 Who, incidentally, claimed in her autobiography (The Measure of My Days, 1955) that her husband had been passed over five times.

129 For details, see Kahn, Essays Schreiner, supra n. 111, at 26.

130 Rubin, Martin, Sarah Gertrude Millin. A South African Life, (1977) 46Google Scholar (as quoted by Kahn, supra n. 73, at 171 sq.).

131 For details, see Kahn, supra n. 73, at 238 sqq.

132 Cf. supra n. 43.

133 Cf. supra text to n. 9.

134 See the family tree in Kahn, supra n. 73, at 240.

135 Kahn, supra n. 73, at 245 sqq.; Corder, supra n. 107, at 25, 36.

136 On him, see (1961) 78 South African Law Journal 1 sqq.; Kahn, supra n. 73, at 208 sq.; idem, Essays Schreiner, supra n. 111, at 56 sqq.

137 Not members of the Jewish community, though Jewish by descent, are the two Hoexters, JJA. Oscar H. Hoexter was a half Jew, his father, Dr. Höxter, being a German Jewish scientist who settled in Grahamstown. He became Judge of the High Court of South West Africa (1938–44), Judge of the Eastern Districts Local Division (1944–48), Judge President (1948–49) and Judge of Appeal (1949–63). Cf. Kahn, supra n. 73, at 90 sq. and in a private communication. His son, G.G. Hoexter, has been Judge of Appeal since 1982 and is the author of the Hoexter report.

138 Cf. Kahn, Ellison, “The Didcott Memorandum and Other Submissions to the Hoexter Commission”, (1980) 97 South African Law Journal 651 sqq.Google Scholar (the quotation is at 662).

139 On whom, see (1963) 80 South African Law Journal 163 sq.; Kahn, supra n. 80, col. 84.

140 On Lewis, see Kahn, supra n. 80, col. 85. Lewis had previously been professor of law at Rhodes University in Grahamstown (1910–1917). He was a grandson of the Rev. Rabinowitz, Joel, Minister to the Cape Town Jewish Community from 1859 until 1882.Google Scholar

141 Kahn, supra n. 80, col. 85 sq.; and see the tributes in (1983) 100 South African Law Journal 296, 749 sq.

142 Cf. Forsyth, supra n. 108, at 6; Kahn, Ellison, (1983) 100 South African Law Journal 749.Google Scholar Herbstein emigrated to Israel, where he became a Governor of the Hebrew University and was made an Honorary Fellow of that institution early in 1983. He died later in the same year.

143 In which year not only Kuper was appointed but also Edgar S. Henochsberg, the latter to the Natal Provincial Division, where he sat until 1964. See (1966) 83 South African Law Journal 121 sq.; Kahn, supra n. 80, col. 86. Henochsberg was the original author of the book now called Henochsberg on the Companies Act, first published in 1953, now in its 4th edition 1985 (ed. Meskin, assisted by Blackman, Glaser, Konyn and Mullins).

144 R.P.B. Davis, one of South Africa's most eminent judges (Kahn, supra n. 80, col. 79), was of Jewish parentage but became a conforming member of the Dutch Reformed Church. He was Judge of the Cape Provincial Division from 1935–48; Judge President 1948 and Acting Judge of Appeal 1944–47. However, at the outbreak of the Second World War, he “allow[ed] the curtains to be drawn […] for one moment” (Kahn, supra n. 80, col. 79), for he called together all the Jewish members of the Cape Bar, encouraging them to stand together in fighting Hitler and urging them to join the armed forces (private communication by Professor Kahn). Another judge who forsook his Jewishness was Vieyra, Herbert J.D. (on whom see (1966) 83 South African Law Journal 2).Google ScholarSirJuta, Henricus Hubertus (1857–1930), Attorney-General in Rhodes's Cabinet 1894Google Scholar, Speaker of the House of Assembly 1896–1898, Judge President of the Cape Provincial Division 1914–1920, Judge of Appeal 1920–23 was also of Jewish descent, his mother Louise (Jenny) Marx being Karl Marx's sister. Both Juta's father and mother, however, became members of the Nederduitse Gereformeerde Kerk. On Juta, see Kahn, supra n. 73, at 106 sqq.

145 Among them Cecil Stanley Margo. After an exceptionally distinguished war record as a bomber pilot for the South African Air Force in the Second World War, he established himself as a leading advocate at the Johannesburg Bar and was appointed Judge of the Transvaal Provincial Division in 1971. He retired in 1985. Margo has been chairman of the standing advisory committee on company law, chairman of the commission into civil aviation and chairman of the commission of enquiry into the tax structure of the Republic of South Africa. In the latter capacity he became one of the fathers of the new system of value added tax that was introduced in South Africa a few years ago. Cf. Kahn, (1986) 43 Jewish Affairs 36.

146 By the middle of 1993, there were 17 Jewish judges in South Africa (out of a total of 148). The ratio for the Appellate Division is 2 out of 17, for the Transvaal Provincial Division 7 out of 53.

147 During the Second World War, he became Lieutenant-Colonel in the South African Air Force and received the DSO and OBE. Such was his ardor that he had lied about his age in order to receive his commission; in terms of the regulations he was already too old to be eligible.

148 He has, however, even after 1988 continued to sit on the Appeal Courts of Bophuthatswana and Ciskei.

149 See, for example, Haysom, Nicholas, Plasket, Clive, “The War against Law: Judicial Activism and the Appellate Division”, (1988) 4 South African Journal on Human Rights 303 sqq.CrossRefGoogle Scholar; Kidd, Michael A., “Internal Security and Specialist Judges”, (1990) 6 South African Journal on Human Rights 417 sqq.Google Scholar Earlier already Dugard, John, “The Judiciary and National Security”, (1982) 99 South African Law Journal 655 sqq.Google Scholar; and the Report of the Hoexter Commission, supra n. 63, at 63 sqq.

150 Cf. e.g. Forsyth, Christopher, “The Sleep of Reason: Security Cases Before the Appellate Division”, (1988) 105 South African Law Journal 679 sqq.Google Scholar; Davis, Dennis, Corder, Hugh, “A Long March: Administrative Law in the Appellate Division”, (1988) 4 South African Journal on Human Rights 281 sqq.CrossRefGoogle Scholar; Mureinik, Etienne, “Pursuing Principle: The Appellate Division and Review under the State of Emergency”, (1989) 5 South African Journal on Human Rights 60 sqq.CrossRefGoogle Scholar And see now the study by Ellmann, Stephen, In a Time of Trouble: Law and Liberty in South Africa's State of Emergency, (1992).Google Scholar

151 Whose appointment as Acting Chief Justice for two years after he had reached the statutory retirement age in early 1987 has been sharply criticized by, inter alia, Cameron, Edwin, “Nude Monarchy: The Case of South Africa's Judges”, (1987) 3 South African Journal on Human Rights 338 sqq.CrossRefGoogle Scholar; Forsyth, , (1988) 105 South African Law Journal 703 sqq.Google Scholar

152 Minister of Law and Order and another v. Dempsey, 1988 (3) SA 19 (A). The case revolves around the question of onus of proof where the unlawfulness of an arrest is in issue.

153 During NO v. Boesak and another, 1990 (3) SA 661 (A) 663 (per Nestadt JA for the majority). Cf. also the opinion of E.M. Grosskopf JA, 666 sqq., at 675, on associating himself with Nestadt. For comment, see Grogan, John, “More than a Matter of Proof”, (1990) 6 South African Journal on Human Rights 398 sqq.Google Scholar

154 For a brief biography, see (1991) 24 De Jure IV.

155 On R.P.B. Davis, see supra n. 144.

156 Kahn, Essays Schreiner, supra n. 111, at 66. On Joseph Herbstein, who did not become Judge President of the Cape Provincial Division, see supra nn. 141 and 142. Mr. Justice Ramon Leon, one of the most eminent “liberal” judges in South Africa, was passed over when the Judge Presidency of the Natal Provincial Division became vacant in 1981. For a profile of Leon, see the Sunday Times of 19 April 1992.

157 1986 (3) SA 969 (T).

158 1984 (1) SA 642 (W).

159 1988 (1) SA 191 (T).

160 1989 (1) SA 397 (W).

161 1989 (4) SA 731 (A).

162 The Commission's full title is the Commission of Inquiry regarding the Prevention of Public Violence and Intimidation. It is popularly known as the Goldstone Commission and was created by the Prevention of Public Violence and Intimidation Act No. 139 of 1991. The Commission reports to the State President. It was also accepted later in 1991 by the National Peace Accord. It has, so far, produced more than 30 reports. It has also established an Institute that gathers all articles, information and studies on violence, and monitors to what extent the recommendations contained in the Commission's reports are implemented. Two important publications that have been instigated by the Goldstone Commission are Towards Peaceful Protest in South Africa, (1992) and Towards Violence-Free Elections in South Africa, (1993).

163 The University of Cape Town, incidentally, has been identified with its Jewish students to such an extent that it is still commonly nicknamed “Ikeys”.

164 On the origins of legal training in the Cape, see Cowen, (1959) Acta Juridica 8 sqq. On the history of the Law Faculty of the University of Cape Town, see Visser, D.P., “As Durable as the Mountain: The Story of the Cape Town Law School since 1859”, (1992) Consultus 32 sqq.Google Scholar; Cowen, Denis V., “Taught Law is Tough Law: The Evolution of a South African Law School”, (1988) 51 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 4 sqq.Google Scholar On the law faculty in Stellenbosch, see van Wyk, A.H., “Die Stellenbosse Regsfakulteit 1920–1989”, (1989) Consultus 42 sqq.Google Scholar

165 On George Wille, see Beinart, Ben, (1966) 83 South African Law Journal 389 sqq.Google Scholar; Cowen, , (1988) 51 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 9 sqq.Google Scholar; Kahn, supra n. 73, at 348 sqq.

166 Wille was generally a man of extreme likes and dislikes. Apart from Professor Kerr Wylie, he particularly disliked poetry and Oxford (“too many poets”).

167 Generally on the growth of indigenous South African legal literature, see de Vos, Wouter, Regsgeskiedenis, (1992) 264.Google Scholar

168 Edited by Dale Hutchison, (1991). The first edition was published in 1937.

169 1984, by Coaker and Zeffertt. The other two treatises are Mortgage and Pledge in South Africa, first published in 1921, now edited by T.J., and Scott, S. and called Wille's Law of Mortgage and Pledge in South Africa, (3rd ed., 1987)Google Scholar; and Landlord and Tenant in South Africa, (first published in 1910, 5th ed., 1956). Cooper's, Wilfred book The South African Law of Landlord and Tenant, (1st ed., 1973, 2nd ed., 1994)Google Scholar, calls itself the successor to Wille's Landlord and Tenant on the title page.

170 On Philip Millin, see supra, VI. 2.

171 On Beinart, see Kahn, supra n. 73, at 2 sq.; Stein, P.G., (1980) 1 Journal of Legal History 4 sq.CrossRefGoogle Scholar; and Essays in Honour of Ben Beinart, vol. I, (1978) pp. XV sqq.

172 Stein, , (1980) 1 Journal of Legal History 5.CrossRefGoogle Scholar

173 Dean, Barry, in Essays in Honour of Ben Beinart, vol. I, (1978) p. XV.Google Scholar

174 These Essays in Honour of Ben Beinart at the same time constitute the 1976–1978 issues of Acta Juridica.

175 On whom, see Kahn, supra n. 73, at 82 sqq.; the tributes in (1984) 101 South African Law Journal 419 sqq.; and Ellison Kahn, (1985) 102 South African Law Journal 573 sqq. Cf. also Kahn, Ellison, “The Birth and Life of the South African Law Journal”, (1983) 100 South African Law Journal 613 sqq.Google Scholar

176 About Hahlo's religious affiliation, Professor Ellison Kahn writes (private letter dated 18 June 1993): “[He] was born a Jew, but… became an Anglican. He was one of several German Jewish refugees in South Africa whom I knew who decided, sometimes for the sake of their children, to try to shrug off their descent. I must be one of the few who knew that, shortly after he came to Johannesburg, and some years before World War II, Hahlo wrote a small book which was published in England under a lightly disguised pseudonym, the book being entitled The Shortest Way with the Jews — that way being assimilation by all Jews”.

177 On whom see the tributes in Visser, Coenraad (ed.), Essays in Honour of Ellison Kahn, (1989) 1 sqq.Google Scholar

178 Corbett, M.M., Hahlo, H.R., Hofmeyr, Gys, Kahn, Ellison, The Law of Succession in South Africa, (1980).Google Scholar

179 Now in its 5th edition (still by Hahlo).

180 Now in its 5th edition, edited by Pretorius, , Delport, , Havenga, and Vermaas, , and called Hahlo's South African Company Law Through the Cases. A Sourcebook, (1991).Google Scholar

181 On Kahn's publications, cf. further Coenraad Visser, in Essays Kahn, supra n. 177, at 3 sqq.

182 The history of which has been told by Kahn in (1983) 100 South African Law Journal 594 sqq.; cf. also idem, (1983) 100 South African Law Journal 1 sq.

183 June Sinclair, in Essays Kahn, supra n. 177, at 23.

184 Cameron, Edwin, “Lawyers, Language and Politics — In Memory of J.C. de Wet and W.A. Joubert”, (1993) 110 South African Law Journal 51 sqq.Google Scholar

185 See, for example, the articles by Wacks, Dugard, Cameron, or Forsyth, as quoted above, or van Niekerk's, Barend article “Hanged by the Neck Until You Are Dead”, published in (1969) 86 South African Law Journal 457 sqq.Google Scholar, which resulted in the author being tried for contempt of court. On the latter incident, cf. Kahn, supra n. 73, at 281 sqq.

186 (1993) 110 South African Law Journal 621 sq.

187 There have also, of course, been prominent Jewish legal writers outside of the universities. One of them was Manfred Nathan (1875–1945), who wrote a four volume standard reference work entitled The Common Law of South Africa. His son, Charles, was Chief Justice of Swaziland, and is the author of one of the leading textbooks on the rules of court.

188 Cowen is the author of many influential books and articles in the fields of commercial law, public law and general jurisprudence, among them Parliamentary Sovereignity and the Entrenched Sections of the South Africa Act, (1951) (the contentions therein being endorsed by the Appellate Division of the Supreme Court in Harris v. Minister of the Interior, 1952 (2) SA 428 during the great constitutional crisis of the 1950's); cf. Hahlo/Kahn, supra n. 60, pp. 154 sqq.; on the constitutional crisis, cf. the literature quoted supra n. 109, The Foundations of Freedom, (1961) and The Law of Negotiable Instruments in South Africa, (4th ed., 1966, 5th ed., vol. 1, 1985, with L.J. Gering as co-author). On Cowen, who is of mixed ancestry — only his father was Jewish — and who was baptized as a Christian, see Visser, (1993) Consultus 35.

189 Now Chairman of the Harmful Business Practices Commission and Honorary Professor of Law at the University of the Witwatersrand.

190 Sachs's, Albie legal publications include Justice in South Africa, (1973)Google Scholar; Creating Popular Justice in Mozambique (with G.H. Welch), (1990); Protecting Human Rights in South Africa, (1990); and Advancing Human Rights in South Africa, (1993). His autobiographical/political writings include The Jail Diary of Albie Sachs, (1966) and The Soft Vengeance of a Freedom Fighter, (1990). Sachs is presently a member of the African National Congress's Constitutional Committee and of the National Executive Committee.

191 “The great majority of practising lawyers have led or are leading lives of service as attorneys … They do not achieve public prominence. Their work is largely writ in water”, Kahn, supra n. 80, col. 74.

192 On whom, see Kahn, , (1986) 43 Jewish Affairs 41 sq.Google Scholar; Berger, supra n. 44, at 213 sqq.

193 Quoted in Kahn, , (1986) 43 Jewish Affairs 41.Google Scholar