UJ constotutila law and human rights expert Professor David Bilchitz. Photo: YouTube Screengrab
Law professor David Bilchitz was accused of being evasive by some members of the Judicial Service Commission (JSC) who wanted to know his stance on the Israel-Palestine conflict.
This came after commissioner Mvuso Notyesi referred to Bilchitz’s 2019 article in which he criticised those who likened Israel to apartheid South Africa.
The article was published in the newspaper SA Jewish Report.
Notyesi also referred Bilchitz to the 2004 ruling by the International Court of Justice (ICJ) that declared Tel Aviv’s construction of a wall in the West Bank separating Palestinian families as illegal and that it should be knocked down.
“The impression I got from your article is that you criticised the comparison of action by Israel government with those of apartheid South Africa.
“You described the comparison as ‘having no sense if one considers the different origins of the conflict.’
“Were you aware of of the 2004 ICJ decision? Because you did not make even a simple reference to it in your article,” said Notyesi.
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Bilchitz at first said he was inclined to answer questions on issues before the ICJ while he is a sitting judge who is acting in the Constitutional Court.
“I am aware that former chief justice [Mogoeng] was disciplined by the JCC for expressing views on IsraeI.
“As a sitting judge, I’ve taken a view not to express views on any conflict that involves foreign policy or the domain of the executive. I will ask for guidance from the chief justice Zondo in this regard.”
But JSC chairperson and Chief Justice Raymond Zondo told Bilchitz that Notyesi just wanted to find out if he was aware of the ICJ judgement, to which he replied “yes, I am aware of it.”
The law academic said his article highlighted military occupation of Palestine territory, and he sought to draw attention to it.
Notyesi: Do you still stand by your article?
Bilchtz: Answering that question would be to wade into highly contested engagement with issues of history and politics, which I think would be inappropriate for me as a sitting Constitutional Court judge to answer.
Zondo told Bilchtz the question sought clarification on matters he wrote about before he was an acting judge.
Commissioner Julius Malema added that Bilchitz’s replies on the article would be considered during the JSC deliberations.
“You cant have it both ways, either you stand by the article or you indicate to us that with hindsight and following the ICJ judgement, your views have changed,” Malema said.
Zondo requested a few minutes’ break for the commission to discuss the suitability of the Middle East question to Bilchitz.
After their return from the discussions, Biltchtz said that he stood by the thrust of the article that advocates for the need to find peace and for the two nations to live peacefully side by side.
It was at that point that commissioner Tembeka Ngcukaitobi interjected, accusing Bilchtz of being “evasive and defensive.”
“I’ve always watched candidates before JSC complicating their lives and being defensive and evasive, and I am afraid that’s the impression I am getting on this issue.
“You wrote an article saying you don’t buy the story of colonialism, that’s fine, we can debate that. Apartheid is an international issue and so is occupation, we don’t need views of our top judges in the apex court.
“South Africa has been involved in international affairs since 1994 I think you are evading the issue,” said Ngcukaitobi.
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The human rights and constitutional law expert apologised to commissioners.
“I apologise if I appeared evasive in any way, I do not see it as appropriate for me to express a view where there’s currently proceedings brought by South Africa relating to genocide.
Ngcukaitobi: What’s different is that you wrote the article and expressed views. You have written about it. No one is trying to catch you. As a future judge, is this the view you carry into the future?
Biltchtz: I am not trying be evasive, I expressed where I stood in the past, at the moment sinceI’ve been acting judge I have not commented on horrific events that took place in Middle East for exactly the reason that it would be inappropriate.
“People in South Africa who have vast differing views should have confidence in me. I am committed to international law and finding resolutions to conflicts.”
Bilchitz’s interview was supposed to take at least an hour but it went into the early evening. He is the first non-judge in decades to be interviewed for the job.
The JSC will on Tuesday interview judges Tati Makgoka and Ashton Schippers, both of the Supreme Court of Appeal (SCA), and Advocate Alan Dodson.
All three are also vying for the Constitutional Court post.
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