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A Digest of Selected Judgments of the Supreme Court of Israel

Published online by Cambridge University Press:  16 February 2016

Naomi Hillel
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Case Report
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Israel Law Review , Volume 23 , Issue 4 , Autumn 1989 , pp. 506 - 556
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1989

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Footnotes

*

Fourth year student, Faculty of Law, The Hebrew University of Jerusalem.

References

1 8 L.S.I. 144.

2 See digest of this case in “A Digest of Selected Judgments of the Supreme Court of Israel” (1987/1988) 22 Is.L.R. 487, at 505 Google Scholar.

3 4 L.S.I. 114.

4 Shiran & others v. The Broadcasting Authority & others (1981) 35(iii) P.D. 365.

5 29 L.S.I. 162.

6 Drayton, , The Laws of Palestine, vol. 1, p. 633 Google Scholar.

7 38 L.S.I. 101, at 104. Sec. 15(c) & (d) provide:

(c) The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court (beit mishpat or beit din).

(d) Without prejudice to the generality of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be competent—

(1) to make orders for the release of persons unlawfully detained or imprisoned;

(2) to order State and local authorities and the officials and bodies thereof, and other persons carrying out public functions under law, to do or refrain from doing any act in the lawful exercise of their functions or if they were improperly elected or appointed, to refrain from acting;

(3) to order courts (batei mishpat and batei din) and bodies and persons having judicial or quasi-judicial powers under law, other than courts dealt with by this Law and other than religious courts (batei din), to hear, refrain from hearing, or continue hearing a particular matter or to void a proceeding improperly taken or a decision improperly given;

(4) to order religious courts (batei din) to hear a particular matter within their jurisdiction or to refrain from hearing or continue hearing a particular matter not within their jurisdiction, provided that the court shall not entertain an application under this paragraph if the applicant did not raise the question of jurisdiction at the earliest opportunity; and if he had no measurable opportunity to raise the question of jurisdiction until a decision had been given by a religious court (beit din), the court may quash a proceeding taken or a decision given by the religious court (beit din) without authority.

8 33 L.S.I. 46.

9 L.S.I. Special volume.

10 Sec. 71A provides:

71A. (a) A court which convicts a person but does not impose a penalty of actual (as distinct from conditional — Tr.) imprisonment on him may, in lieu of or in addition to any other penalty, by order, require him to perform in his spare time, without remuneration, any activity or service for the benefit of the community or of some other person or persons (any such activity or service hereafter in this article referred to as a “community service”) for such period and number of hours and according to such plan as the court may prescribe in the order; any such order as aforesaid is hereafter referred to as a “service order”.

(b) Where the court finds that the accused has committed an offence, it may make a service order even without convicting him, in addition to or without ordering probation, and upon its doing so, the service order shall, for the purposes of section 9 of the Probation Ordinance (New Version), 5729-1969, be treated as a probation order.

(c) The court shall not make a service order until it is satisfied, on the strength of the report of a probation officer, that arrangements have been made in accordance with a detailed plan, enabling the sentenced person to perform the service.

(d) The court may, in a service order, prescribe terms and conditions deemed by it to be necessary to ensue the carrying out of the service by the sentenced person and the supervision of such carrying out.

(e) The court shall explain to the sentenced person, in simple language, the significance of the order and the purpose and particulars of the service and shall warn him that if he does not comply with the order he will be liable to the consequences mentioned in section 71D. The court shall not make a service order unless the sentenced person has expressed willingness to comply with its provisions.

(f) A community service shall be supervised by a probation officer, who may enlist the assistance of other persons for this purpose.

11 19 L.S.I. 103.

12 Levy & others v. Southern Commander of the Israeli Police (1984) 38(ii) P.D. 393.

13 La'or & others v. Film and Theatre Censorship Board (1987) 41(i) P.D. 421.

14 Kol Ha'Am & another v. Minister of Interior (1953) 7 P.D. 871; 1 S.J. 90.

15 Sec. 144B declares the publication of racial incitement a criminal offence. Sec. 144C of the Penal Law provides, inter alia, that publishing a fair and true account of an act prohibited by Sec. 144B will not be viewed as an offence according to that section, so long as it was not done with the intention of fomenting racism. Secs. 144A-E were added to the Penal Law by the Penal Law (Amendment No. 20) 1986, S.H. 219 Google Scholar.

16 5 L.S.I. 149. Secs. 2, 3 and 9 provide:

2. (a) A member of the Knesset shall be immune —

(1) from a search of his dwelling;

(2) from a search of his person or his belongings, except a search at a place set aside for an examination on behalf of the customs authorities.

(b) A member of the Knesset shall be immune from a search of his papers and from the opening or confiscation thereof; but for the purpose of enforcing control under any law concerning currency or foreign currency it shall be lawful to open the papers of a member of the Knesset in his presence, without, however, reading them, unless the paper is a currency note, cheque, draft or security. The papers of a member of the Knesset include mail sent to him and mail sent by him under a special arrangement laid down by the House Committee.

3. (a) A member of the Knesset shall not be arrested unless caught while committing a crime involving violence, a disturbance of the peace or treason.

(b) The authority which has arrested a member of the Knesset under subsection (a) shall immediately notify such fact to the Chairman of the Knesset.

(c) A member of the Knesset arrested under subsection (a) shall not be kept under arrest for more than ten days unless his immunity is withdrawn, in respect of the crime in question, before expiration of that period.

9. (a) A direction prohibiting or restricting access to any place within the State other than private property shall not apply to a member of the Knesset unless the prohibition or restriction is motivated by considerations of State security or military secrecy.

(b) A member of the Knesset is entitled to free travel within the State on the railway and on buses of a public passenger transport service.

17 See supra n. 7.

18 Mi'ari & others v. Speaker of the Knesset (1985) 39(iii) P.D. 122.

19 Sec. 13 provides:

(a) The Knesset may, by resolution, withdraw the immunity of a member of the Knesset in respect of a particular charge, and may also withdraw any other immunity or right granted him by this Law, except an immunity or right under section 1; but the Knesset may only pass such a resolution if the House Committee, upon an application brought before it, so proposes.

(b)The right to make application for the withdrawal of the immunity of a member of the Knesset in respect of a particular charge is vested in the Attorney-General; the right to make application for the withdrawal of some other immunity or right granted to a member of the Knesset by this Law is vested in the Government and in every member of the Knesset.

(c) An application under this section shall be submitted to the Chairman of the Knesset, who shall forward it to the House Committee for consideration at its forthcoming meeting.

(d) The House Committee shall not propose, and the Knesset shall not resolve upon, the withdrawal of an immunity or right of a member of the Knesset unless such member has been given an opportunity to state his case.

(e) The Knesset shall not discuss or resolve upon the withdrawal of an immunity or right unless all members of the Knesset have been given at least twenty-four hours' prior notice of the debate and the vote.

20 Sec. 1 provides:

(a) A member of the Knesset shall bear no criminal or civil responsibility, and shall be immune from any legal proceeding, in respect of a vote, an oral or written expression of opinion or any other act, in or outside the Knesset, if such vote, expression of opinion or act pertains to or is directed towards the carrying-out of his mandate as a member of the Knesset.

(b) A member of the Knesset is not bound to state in evidence a fact learned by him in carrying out his mandate.

(c) The immunity of a member of the Knesset under this section shall continue when he has ceased to be a member of the Knesset.

21 Genesis I: 22 and 28.

22 State of Israel v. Tamir (1983) 37(iii) P.D. 201.

23 Drayton, , Laws of Palestine (1923) vol. III, p. 2509 Google Scholar.

24 Drayton, , Laws of Palestine (1933) vol. II, p. 1294 Google Scholar.

25 16 L.S.I. 106.

26 Salhat v. Nablus Municipality & others (1986) 4(ii) P.D. 350.

27 27 L.S.I. 117.

28 2 L.S.I. [N.V.] 5.

29 22 L.S.I. 107.

30 See supra n. 27.

31 19 L.S.I. 330.

32 P.G., Supplement no. 1, p. 44.

33 See supra n. 27.

34 Sec. 20 provides: “Rescission of a contract shall be by notice by one party to the other party given within a reasonable time after becoming aware of the ground for rescission or, in the case of duress, within a reasonable time after becoming aware that the duress has ceased”.

35 Spector v. Zarfati (1978) 32(i) P.D. 231.

36 23 L.S.I. 283.

37 31 L.S.I. 294. Sec. 77A of the Land Law provides: “‘common property’ means all the parts of the house except the dwellings and includes the land, roofs, outer walls, foundations, staircases, lifts and shelters, as well as heating and water installations and the like intended to serve all or most of the owners of the dwellings even if they are inside a particular dwelling”.

38 27 L.S.I. 213. Sec.6(a) of the Sale (Housing) Law provides: “Where a person sells housing in a cooperative house or in a house intended to be registered as a cooperative house, and the rules applying to the house or which he intends to apply to the house annul or vary a provision of the model rules relating to one of the following matters, he shall include particulars of such matters in the specification or add them to the contract of sale: (1) the exclusion of part of the common property;… (3) the rate of the contribution to the expenses of the cooperative house and to the obligatory services connected therewith;…”

39 Sec. 126 of the Land Law, 1969 (23 L.S.I. 283) provides:

Where it is proved to the satisfaction of the Registrar that the owner of any property or the holder of a right in any property has undertaken in writing to effect or to refrain from effecting a transaction in respect thereof, the Registrar shall, on the application of the person who has given the undertaking or the person entitled under the undertaking (such last-mentioned person hereinafter referred to as “the person entitled”), enter a note to such effect. For this purpose, it shall be immaterial whether the undertaking is entered into by an agreement, an irrevocable authorisation or some other document or whether it is explicit or implied, absolute or conditional.

40 Atias v. The Director of Land Registry (1976) 30(iii) P.D. 527; Winbrand & others v. Rukman & others (1979) 33(ii) P.D. 359.

41 Sec. 161 provides: “From the coming into force of this Law, there shall be no right in immovable property except under Law”.

42 19 L.S.I. 330. Sec. 197(a) provides: “Subject to the provisions of section 200, where any property is prejudicially affected by a Scheme, otherwise than by expropriation, the person who on the date of the coming into force of the Scheme was the owner of, or the holder of any right in, that property shall be entitled to compensation from the Local Commission”.

43 Supra n. 32.

44 Feitzer & others v. The Local Planning and Building Commission of Ramat Gan & others (1984) 38(iii) P.D. 654.

45 9 L.S.I. 132. Sec. 9(a) provides: “The admission or discharge of a sick person to or from a hospital shall forthwith be notified by the director to the Minister of Health, the particulars and modes of delivery of the notification shall be prescribed by regulations”.

46 Sec. 7(c) provides: “Where a physician is of the opinion that the hospitalisation of a sick person admits of no delay, and the sick person is hospitalised against his will, the sick person shall be discharged if a hospitalisation direction is not received within five days from the day on which he is hospitalised”.

47 K.T. 1959, no. 908, p. 1372 Google Scholar.

48 2 L.S.I. [N.V.] 5. Sec. 26 provides: “False imprisonment consists of unlawfully totally depriving any person of his liberty for any period of time by physical means or by a show of authority”.

49 Sec. 27(3) provides: “that the plaintiff was of unsound mind or was suffering from some infirmity of mind or body and that the restraint was, or appeared to be, reasonably necessary for his own protection or for that of other persons and was exercised in good faith and without malice”.

50 Sec. 63 provides:

(a) Breach of a statutory duty consists of the failure by any person to perform a duty imposed upon him by any enactment other than this Ordinance, being an enactment which, on a proper construction thereof, was intended to be for the benefit or protection of any other person, whereby such other person suffers damage of a kind or nature contemplated by such enactment: Provided that such other person shall not be entitled by reason of such failure to any remedy specified in this Ordinance if, on a proper construction of such enactment, the intention thereof was to exclude such remedy.

(b) For the purposes of this section, an enactment shall be deemed to be for the benefit of protection of any person if it is an enactment which, on a proper construction thereof, is intended for the benefit or protection of that person or of persons generally, or of any class or description of persons to which that person belongs.

51 Sec. 12 provides: “For the purposes of this Ordinance, any person who joins or aids in, authorises, counsels, commands, procures or ratifies any act done or to be done, or any omission made or to be made, by any other person shall be liable for such act or omission”.

52 Jerusalem Municipality v. Gordon (1986) 39(i) P.D. 113.

53 6 L.S.I. 147. Sec. 2 provides: “For the purposes of civil liability, the State shall, save as hereinafter provided, be regarded as a corporate body”.

64 11 L.S.I. 58.

55 2 L.S.I. [N.V.] 220. Sec. 36(a)(1) provides: “Every person in charge of or manning a vessel shall at all times obey the instructions of the port manager or any other competent officer as to —

(1) the manner in and the time at which he shall proceed with his vessel to or approach, lie alongside, or depart from any quay”.

56 2 L.S.I. [N.V.] 6. Sec. 35 provides:

Where a person does some act which in the circumstances a reasonable prudent person would not do, or fails to do some act which in the circumstances such a person would do, or fails to use such skill or to take such care in the exercise of any occupation as a reasonable prudent person qualified to exercise such occupation would in the circumstances use or take, then such act or failure constitutes carelessness and a person's carelessness as aforesaid in relation to another person to whom he owes a duty in the circumstances not to act as he did constitutes negligence. Any person who causes damage to any person by his negligence commits a civil wrong.

57 Sec. 36 provides: “For the purpose of section 35, every person owes a duty to all persons whom, and to the owner of any property which, a reasonable person ought in the circumstances to have contemplated as likely in the usual course of things to be affected by an act, or failure to do an act, envisaged by that section”.

58 E.g., supra n. 52.

59 4 L.S.I. 154.

60 Engel v. State of Israel (1983) 37(iv) P.D. 693; Weil v. State of Israel (1986) 39(iii) P.D. 299.

61 15 L.S.I. 196, as amended by the Chamber of Advocates (Amendment No. 13) Law, 1980, 34 L.S.I. 122.

62 2 L.S.I. [N.V.] 198.

63 Klopfer-Naveh & others v. Minister of Education & others (1984) 38(iii) P.D. 233; Ha'aretz v. The Electric Co. (1977) 31(iii) P.D. 281.

64 34 L.S.I. 13. Sec. 10A provides:

10A. (a) A written statement made by a witness out of court shall be admissible as evidence in a criminal proceeding if—

(1) its making has been proved at the trial and

(2) the person who made it is a witness at the trial and the parties have been given an opportunity to examine him and

(3) the testimony, in the opinion of the court, differs from the statement in a material particular or the witness denies the contents of the statement or alleges that he does not remember its contents.

(b) The court may admit a statement referred to in subsection (a) even if the person who made it is not a witness either because he refuses to testify or is incapable of testifying or because he cannot be brought to court since he is not alive or cannot be found, provided that the court is satisfied, from the circumstances of the case, that improper means have been used to dissuade or prevent the person who made the statement from giving testimony.

(c) The court may base its findings on a statement admitted under this section or on any part thereof, and it may prefer such statement to the testimony of the witness, if it sees fit to do so in view of the circumstances of the case, including the circumstances under which the statement was made, the evidence produced at the trial, the conduct of the witness at the trial and indications of the truth which have emerged in the course of the trial. The reasons which prompt the court to do so shall be recorded.

(d) A person shall not be convicted on the basis of a statement admitted under this section unless the evidential material provides corroboration.

65 Snir v. State of Israel (1980) 34(iii) P.D. 561; State of Israel v. Tubul (1985) 39(iii) P.D. 596; Shriki v. State of Israel (1986) 39(iii) P.D. 505.