Ben Kosta v. Minister of Interior

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HCJ 129/57
Ben Kosta v. Minister of Interior
February 27, 1958

In 1955, the petitioner, a Christian, obtained a licence for the sale of pork under the then current bye-law. Consequent upon the enactment of a law enabling local authorities to prohibit or limit the sale of pork in the whole or part of their area as long as such prohibition or limitation  were  binding  upoh  the whole population  of such area  or part, a new bye-law was passed in 1957, containing penal provisions for offences thereunder committed within 42 days from its date, unless immediately prior thereto the sale of the pork was lawful under the law then in force. Soon afterwards a quantity of meat belonging to the petitioner was confiscated and despite his protests and requests for its return, was destroyed. The petitioner claimed that the new bye-law was unreasonable and in excess of the Law, that the non-use of the discretion to exclude some part of the area from the prohibition was discriminatory and that the confiscation was in violation of the new bye-law.


Held:                   (1) The new bye-law was not unreasonable nor in excess of the authority given by the Law which required the prohibition to be applied on a territorial and not a personal basis. The fact that  it might affect Christians equally with Jews and Moslems did not render it an invasion of Christian religious rites nor discriminatory  on grounds of religious affiliation. Christianity does not impose a duty to eat pork. The Law and the bye-law do not prohibit the consumption but the sale of pork.

(2)         The court will not interfere in the exercise of the discretion granted by the Law to a local authority whether  to  exclude or not to exclude any part of its area from the prohibition, since the exercise of the discretion involves an assessment of the existing circumstances, a matter which lies entirely with the local authority, provided it is done bona fide and within the scope of the Law.

(3)         The confiscation of the meat was unlawful, since prior to the new bye-law the petitioner must be deemed to have been at liberty to deal in pork, the old bye-law not being in accordance with the Law in that it imposed a personal 'discriminatory' licensing system, and the manner of confiscation therefore offended against the new bye-law which now applied.

Olshan, Yitzhak Primary Author majority opinion
Berinson, Zvi Author concurrence
Goitein, David Author concurrence