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[2022] ZAECGHC 6
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Galperin v East London Hebrew Congregation and East London Chevra Kaddisha and Others (1340/2021) [2022] ZAECGHC 6 (18 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE
NO: 1340/2021
DATE
HEARD: 21/10/2021
DATE
DELIVERED: 18/01/2022
In
the matter between
CHANOCH
GALPERIN
APPLICANT
and
EAST
LONDON HEBREW CONGREGATION AND
EAST
LONDON CHEVRA KADDISHA
FIRST RESPONDENT
UNION
OF ORTHODOX SYNAGOGUES OF SOUTH
AFRICA,
FEDERATION COUNCIL
SECOND RESPONDENT
BETH-DIN
OF JOHANNESBURG
JEWISH
ECCLESIASTICAL COURT
THIRD RESPONDENT
JUDGMENT
MABENGEAJ:
[1]
The applicant was employed by the first
respondent as a rabbi in terms of an employment contract dated the
23
rd
of June 2016. The first respondent terminated this contract on 3
February
2020.
[2]
The first respondent is a church under
the name East London Hebrew Congregation. The second respondent is
the Union of Orthodox
Synagogues of South Africa, Federation Council.
The second respondent is an association incorporated under section 21
of the Companies
Act. The first respondent is a
member
of the second respondent. The third respondent is the Jewish
Ecclesiastical Court
·
of
the Federation council (the Beth-Din). Both the applicant and the
first respondent are subject to the authority of the Beth Din.
[3]
In this application, the applicant seeks
an order reviewing and setting aside the third respondent's decision
dated 15 January 2021
not to exercise its jurisdiction to adjudicate
the dispute involving the applicant and the first respondent. The
applicant further
seeks an order that the first respondent must file
its statement of defence upon the applicant's attorneys of record and
upon the
third respondent within ten (10) days of the service of the
order upon the first respondent and that the third respondent must
hold a hearing to adjudicate the applicant's dispute within one month
of the service of the order. The first
respondent opposed the
application.
[4]
In the affidavit the applicant set out a
number of instances on which he relied for the relief
sought.
[5]
The
applicant submitted that he has been subjected to unfair
administrative action and the conduct of the third respondent
constituted
an unreasonable exercise of its powers as per section 6
of the Promotion of Administrative Justice Act
[1]
. The administrative action by the third respondent failed to comply
with the Articles of Association, the Torah and the Jewish
Law.
[6]
The applicant further submitted that the
third respondent failed to apply their minds to those clauses
i
n
the Articles of association as read with the Torah
and
Jewish
Law which
g
i
ves
the
Beth
-
Din
exclusive jurisdiction
over
the
referred
dispute. Clause 10 of the Articles of Association of the
Federation
Council provides that: "disputes
between any constituents shall be submitted for arbitration to the
management committee, with
the right of appeal to
the Johannesburg Beth-Din. Disputes
between any constituents and officials in their employ shall be
submitted to the Beth-Din, whose
decision shall be final and
binding". The applicant submitted that the decision by the
Beth-Din not to exercise its jurisdiction
to adjudicate the dispute
between the applicant and the first respondent falls to be reviewed
and set aside.
[7]
The respondent's answering affidavit in
the present application stated that since the applicant premised his
review on PAJA, the
provisions of PAJA are not applicable as the
decision of the Beth-Din does
not
constitute an administrative action and is not one of an
administrative nature.
[8]
The respondent stated that clause 13 of
the annexed contract of employment clearly provided
that
termination
of the employment contract due to misconduct, incapacity and
operational requirements shall be effected through the
procedures
prescribed in the Labour Relations Act. The first respondent elected
not to have the labour dispute relating to a dismissal
to be
adjudicated upon by the Beth-Din as the employment contract expressly
provided that labour disputes were to be determined
by the labour
courts and not by the Beth-Din. As such the first respondent
communicated to the Bet h
Din that they will not attend the proceedings by the
Beth-Din.
Discussion
[9]
The applicant's main application is for
an order reviewing and setting aside the decision by the third
respondent being the Beth-Din
taken on 15 January 2021. In this
decision the third respondent elected not
to
exercise its jurisdiction to adjudicate
the dispute between the applicant and the first respondent. The
applicant seeks this order
against the third respondent
only, the applicant does not seek any
order against the first respondent directing it to comply with any
obligation to have the
labour dispute adjudicated upon by the third
respondent except for the
ancillary
relief to direct the first respondent to file its statement of
defence within ten days of the service of the order on
the first
respondent.
[10]
It
is important to note that the applicant referred to the Beth-Din a
dispute relating to the applicant's wrongful and unlawful
dismissal.
[2]
It
is common cause that the first respondent refused to submit
themselves to the Beth-Din's jurisdiction notwithstanding all the
efforts made by the Beth-Din that the first respondent agree that the
dispute be adjudicated upon by the Beth-Din. Hence the decision
of
the Beth-Din
[3]
that Jewish law
does not permit the Beth-Din to make rulings without both parties to
the dispute agreeing to
be
subject to such rulings and appearing before the Beth-Din. Due to the
exceptional circumstances
,
the
Beth-Din granted the appl
i
cant
permission to pursue his claim against the first respondent in the
secular
courts.
[11]
It
is important to note that parties have to voluntarily agree to submit
the matters of controversy between them to the Beth-Din
as the
decision of the Beth-Din will be final and binding on the parties. It
is further important to note that the Beth-Din has
confirmed that it
has the necessary jurisdiction over the applicant's dispute, however
in circumstances where one of the parties
to the dispute is not
present the Beth-Din is not permitted in Jewish law to adjudicate the
dispute
.
[4]
The
case referred to by the first respondent is relevant in these
circumstances those who join associations are to conform with
its
principles and rules.
[5]
Considering
that the Bet h
-
Din
issued a directive
and
or a decision that according to Jewish law it could not adjudicate
the labour dispute as referred by the applicant where one
party was
not willing to have the dispute adjudicated upon by the Beth-Din, the
applicant as it had already referred the dispute
to the Beth-Din and
the decision by the Beth-Din was that it is not permitted
to
force
a party to its jurisdiction, then the applicant in accordance with
Jewish
law is bound to accept the decision of the Beth-Din.
[12]
The decision by the Beth-Din which the
applicant seeks to review and set aside is in accordance with the
Jewish law that has been
initially followed by the applicant, the
applicant therefore should accept the decision by the Beth Din
where the Beth Din
is guided by a voluntary and willingness basis for
parties and there is no reason for this court to interfere with this
decision
to the extent that it is reviewed and set aside as the
Beth-Din has made it clear to the applicant that it is not permitted
in
Jewish law to hold a hearing or adjudicate a dispute where one of
the parties to the dispute is not
present.
[13]
The
dispute by the applicant as referred to in its papers
[6]
relates to the applicant's
wrongful
and
unlawful
dismissal.
The
Labour
Relations
Act
[7]
(LRA)
is
well placed to deal with the applicant's dispute as per sections 185,
186,191,192 and 193 of the LRA. Section 210 of the
LRA
further provides that if any conflict, relating to the matters dealt
with in this Act, arises between this Act and the provisions
of any
other law save the Constitution, the provisions of this
Act
will
prevail.
This
shows
that
the
LRA
is
well
placed
to
deal
with
the applicant's dispute, this seeing that the Beth-Din has granted
the applicant special permission to approach secular courts
as the
matter cannot be dealt with following Jewish law. This will mean that
the applicant has not
committed
any
sin or acted contrary to his religious beliefs as he has the blessing
of the Beth-Din to approach secular courts.
[14]
It
is clear that the applicant as correctly pointed out by the first
respondent that the applicant relies on the provisions of PAJA
to
have the decision of the third respondent (Beth-Din} reviewed and set
aside
.
The
first respondent further correctly pointed out that the decision
which is sought to be reviewed and set aside is not one that
was
taken when exercising a public power or performing a public function.
The first respondent referred this court to the case
of Hare v
President of National Court of Appeal No 140 and another
[8]
the court stated that the fact that the second respondent is the sole
controlling body for motorsport in South Africa, does not
render the
decisions of its tribunal an exercise of public power or the
performance of a public function. It is the same for the
third
respondent, the Beth-Din its decisions do not qualify as
administrative action as defined in PAJA and are therefore not
subject to judicial review. The Beth-Din does not perform a public
power or public function in terms of an empowering provision
and as
such the decision does not qualify as administrative action, it is
therefore not reviewable in terms of the provisions of
section 6 (1)
of
PAJA.
[15]
In
the
circumstances the application is dismissed with costs.
NMABENGE
ACTING
JUDGE OF THE HIGH COURT
Appearances
Applicant:
Adv IJ Smuts SC, instructed by Wheeldon, Rushmere & Cole Inc,
Makhanda.
Respondent:
Adv P Blieden SC, instructed by Stirk Yazbek Attorneys.
[1]
No3 of 2000 (PAJA)
[2]
B87 para 31
[3]
8B8
[4]
8B15
[5]
Taylor v Kurtstag NO and others (2004] 4 All SA 317
[6]
B87 para 31
[7]
Act 66 of 1995 as amended
[8]
(2009] ZAGPJHC 60