THE MENDELSOHN review application against 2 UCT Council resolutions is taking place in the Western Cape High Court. It presents important challenges to a debate on rival definitions of antisemitism, academic freedom and the right to dissent under the current constitution.

The basis for the challenge by Prof Adam Mendelsohn’s is that the adoption of the resolutions breached the principle of legality – according to him, “they were not lawful, rational, nor taken in good faith.”

The one resolution requires UCT academia to boycott Israeli academia, and the other rejects widely adopted International Holocaust Remembrance Alliance’s (IHRA) definition of antisemitism over what the Free Speech Union calls “a false interpretation of one of its terms.”

A statement by UCT council adopting the resolutions, says it rejects the IHRA “conflation of critique of Zionism and Israel’s policies as antisemitism in favour of the Jerusalem Declaration’s dynamic understanding of what constitutes antisemitism.”

It is unclear whether or not the student body has debated either of these competing declarations. The JD which came into being in 2021 is a relatively recent, development compared to the more established IHRA which first saw light in Y2k.

From what I can gather, there has been no attempt to facilitate debate nor provide students with the necessary materials required in order to examine the relative merits of the resolutions, which have been adopted by council in a top-down manner, without input from stakeholders, and thus enforcing conformity of discourse.

The application avers that “Council failed to consider the views of affected persons and stakeholders (staff and students) …”

Mendelsohn claims the first resolution includes a clause which rejects the IHRA working definitions of antisemitism “on the grounds of falsely claiming that it conflates criticising Zionism and Israel’s policies as antisemitism”, which he says is “a misreading of the IHRA definition.”

The IHRA merely adds examples of violent criticism that may be considered outside the Overton Window of acceptable discourse, such as denying the right of Jewish self-determination by calling for the destruction of the state of Israel or claiming the country is uniquely evil. The two declarations are not mutually-exclusive and should rather inform debate as guidelines rather than prescriptions.

Academic Boycott

The second resolution is an academic boycott: it prohibits UCT academics from entering into or continuing relations with any research group and/or network whose author affiliations are with the Israel Defense Forces and/or the broader Israeli military establishment. While couched within terms that appear opposed to militarism, the boycott in reality is across the board, since every Israeli citizen is currently obligated to serve in the IDF.

Last week Michael Ben-Gad an Israeli-born academic lecturing in the UK was threatened with beheading by protestors who disrupted his lectures because he had served in the IDF during the 1980s.

The imposition of the resolutions Mendelsohn claims, would significantly inhibit his ability to perform his professional and academic obligations. As such they would negatively impact his right to academic freedom at UCT.

Far from being an institutional boycott, academics themselves and the broader academic body will find themselves under discursive sanctions that seek to limit public, intellectual and academic discourse (see Mendelsohn suspension below). There are also unintended consequences to consider.

A student simply doing archeological or historical research on the Levant, might run the risk of being removed from campus. In the social sciences, narrative may be constrained by what is considered Haram or forbidden according to religious and political strictures that have nothing to do with scientific research.

It is for similar reasons that Noam Chomsky voiced his opposition to academic and cultural boycotts as opposed to boycotts of Israeli products.

Prof. Mendelsohn’s challenge is that the Council was bound to exercise its powers according to the principle of legality. In so doing it was required to act lawfully, rationally and in good faith.

Arguments before Court

The argument is that the Council’s process failed to follow the principle of legality in that:

1. Certain members of the Council knew that the resolutions could be financially prejudicial to UCT and yet failed to disclose this to the Council before the decisions were taken, and despite being asked repeatedly about such potential consequences. Among the financial contributions placed at risk by the resolutions was a donation worth R200 million, and another for the building of a specialist hospital;
2. Council failed to consider a risk report (2019) about similar resolutions, and three legal opinions on Council’s powers to pass resolutions limiting academic freedom;
3. Council failed to consider the views of affected persons and stakeholders (staff and students) before taking its decision, as a matter of rationality and in terms of its own Risk Management Policy of June 2020;
4. The decision is irrational as it rejects the IHRA definition of antisemitism on the purported grounds that it conflates antisemitism with criticism of Israel, which it does not, as it says the opposite. The second resolution is also too broad, too narrow, and too vague to achieve any legitimate purpose;
5. Council had no authority to pass the resolutions under the Higher Education Act 101 of 1997, its 2010 policy on public statements, and the Regulations for Reporting by Public Higher Education Institutions.These instruments require Council to pass reasonable resolutions. Mendelsohn argues that they are not reasonable. They impose disproportionate limits on the constitutional right to freedom of expression including academic freedom.
6. There is a reasonable apprehension of bias as several Council members, including the Chair of Council, had publicly expressed their views on the subject matter of the resolutions, creating a reasonable apprehension that Council was biased.

Amicus Briefs

Both the South African Jewish Board of Deputies (SAJBD) and South African Jews for Free Palestine (SAJFP) applied to be admitted as amici to the court.

SAJBD amici application is in regard to the levels of antisemitism that have pervaded the UCT campus, particularly after the attack by Hamas on Israel on 7 October 2023. Their argument is that the resolutions contribute to an already poisonous atmosphere on the campus. SAJFP have countered that the SAJBD does not represent all Jews.

Unlawful Suspension

Shortly after instituting the matter, Prof Mendelsohn was suspended because of complaints by colleagues over his opposition to the resolutions, a clear infringement upon the right to dissent.

Although an an investigation by UCT cleared Prof Mendelsohn in May his “reintegration as the Head of Department has depended on mediation with his department. Since UCT has not convened mediation, Prof Mendelsohn remains suspended.   

The outcome of this hearing and the treatment of Prof. Mendelsohn for exercising his constitutional rights “could have hugely negative implications for the reputation and status of UCT as South Africa’s premier tertiary institution” notes the Free Speech Union. 

NOTE: It should be noted that Nelson Mandela supported the right of Israel to exist as a state.   “Support for Yasser Arafat and his struggle does not mean that the ANC has ever doubted the right of Israel to exist as a state, legally. We have stood quite openly and firmly for the right of that state to exist within secure borders” Nelson Mandela