Earlier this week the Daily Friend published a news report about the complaint made to the Judicial Service Commission (JSC) about the candidacy of Judge David Unterhalter to the Constitutional Court (ConCourt). The grounds were that he had sat on the board of the South African Jewish Board of Deputies (SAJBD).
The complaint came from Coalition BDS (BDS) – Boycott Disinvestment Sanctions – which views Israel as an “apartheid” state. As such BDS holds that –
“The values, ethos and actions of the SAJBD do not align with our government policies and our constitutional values. The SAJBD is akin to the Broederbond and serves as a conservative organisation that supports and minimizes the actions of the Israeli apartheid state, much like the Broederbond did with respect to apartheid South Africa. The SAJBD has supported the Zionist state’s brutal oppression of the Palestinian people.”
“A judicial nominee’s views of culture, history, transformation, judicial philosophy is extremely important. Seeking judges that support progressive understanding of human rights is essential. …A judicial nominee cannot honestly proclaim (sic) to be a supporter of human rights for South Africans but be a commissioner of an organization that supports and defends war crimes and crimes against humanity against the Palestinians. Ubuntu represents the recognition and upholding of the humanity of everyone.”
BDS accuses the SAJBD of having “a sordid history of hurling allegations of antisemitism against people in South Africa who advocate for Palestinian rights. It smears individuals and organizations in an attempt to silence those who seek to hold Israel accountable for gross human rights abuses and violations of international law.”
Unterhalter was appointed to the SAJBD executive committee in 2020 particularly to assist in the challenge facing the Jewish community in dealing with Covid-19.
The SAJBD, which is 118 years old, is “the umbrella representative spokes body and civil rights lobby of the SA Jewish community. It promotes the safety and welfare of South African Jewry, including combating antisemitism in all its forms, and builds bridges of friendship and understanding between Jews and the broader South African population.” The SAJBD’s welfare and charity work is stellar.
‘Fought to uphold civil rights’
Its website states that it has “fought to uphold the civil rights of the Jewish community, combating anti-Jewish prejudice in all its forms and building bridges of friendship between Jews and their fellow South Africans. It also works closely with other human rights bodies like the Hate Crimes Working Group to ensure that all people in South Africa are protected from the evils of discrimination and intolerance.” A superb article about the SAJBD is to be found in News24.
In response, the SAJBD said of BDS’s complaint that, “in yet another shocking display of bigotry and intolerance, the South African BDS Coalition has called for a Jewish candidate for appointment to the Constitutional Court to be rejected on the grounds of his association with the South African Jewish Board of Deputies (SAJBD)”.
The SAJBD accuses BDS of defamation for accusing the SAJBD of not being aligned with the democratic values as enshrined in the South African Constitution. “The reality is that it is the SA BDS Coalition, not for the first time, which is guilty of flouting these values.”
The SAJBD further accuses the BDS movement of persistently inciting hatred, and even harm, against the mainstream Jewish community and its democratically elected leadership.
Unterhalter was interviewed by the JSC on Tuesday 15 April 2021 for one of the two vacant positions on the ConCourt. JSC interviews are renowned for being robust and even aggressive. The questions asked of Unterhalter weren’t disrespectful or aggressive, but they revealed much about the intellectual poverty and racism of some of the JSC commissioners.
Five commissioners questioned Unterhalter about his position on the SAJBD; among them were the representative of the Black Lawyers Association (BLA); the minister of justice, Ronald Lamola; and Advocate Dali Mpofu SC.
The questions related to his being on the executive of the SAJBD. This equated to being an association with Zionism and that because Zionism is, in the commissioners’ view, akin to racism, they implied that Unterhalter supported Israel and therefore by implication he supported an ‘apartheid state’.
Mpofu suggested that any association with ‘apartheid’ means that the person so associated cannot believe in a (the South African) Constitution that espouses equality; and that the same implies that association with a Zionist organisation is inherently irreconcilable.
Bias
The minister was concerned that Unterhalter’s mere affiliation with the SAJBD showed bias on the Israel/Palestine situation.
One commissioner asked whether Unterhalter shouldn’t have taken a ‘cooling-off period’ from the SAJBD before applying to be a court judge. Unterhalter resigned from the SAJBD some time before the interview took place.
It must be borne in mind that despite the ANC government sharing these views of Israel and being unashamedly pro-Palestinian, it nevertheless recognises the state of Israel and purports to support a two-state solution.
The contradiction the ANC has not yet grappled with is that it supports the Palestinian Liberation Organisation, the Palestinian Authority, BDS, and Hamas, among others. Yet none of these organisations support a two-state solution – they support a one-state solution based on the elimination of the Jewish state.
Any judge supporting organisations that promote the destruction of Israel would have an untenable bias. This issue has never been canvassed with a ConCourt applicant.
The reality is the Israel/Palestinian conflict is highly unlikely to come before the ConCourt. And for the reasons already given, Unterhalter may not be the only judge who would have to consider recusal.
Then, as if this wasn’t bad enough, Unterhalter was questioned about his “white privilege”. The BLA asked if his achieving a degree at Oxford University wasn’t indicative of his ‘white privilege’. Unterhalter admitted he had been privileged, but hoped that what he learnt at Oxford would be beneficial to his contribution to the ConCourt.
Must be punished
One commissioner asked if, given his ‘white privilege’, it was fair of him to apply for a position that should go to a black judge? As Unterhalter had made lots of money in his practice, was his application fair? Lucrative practices appear to be a sin for white advocates but not for black advocates. White wealth must be punished, however hard one has to work for it.
Mpofu asked whether Unterhalter’s ‘white privilege’, and the fact that apartheid and racism were not things of the past, meant that he should not be appointed because he’d only been on the High Court Bench for three years and had not acted in the ConCourt? There was a delicious irony to Mpofu’s ‘white privilege’ animus because Mpofu paid for his own son, whose mother is white, to study at Oxford.
Unterhalter’s stellar career over 27 years as an advocate and academic, his experience as a constitutional law practitioner and in public law, commercial, competition, construction, regulatory and international trade law, didn’t impress the JSC.
The fact that he has done considerable pro bono work, that he had sat on the Appellate Body of the World Trade Organisation for eight years, with two years as chair, or sat for three terms at the Supreme Court of Appeal didn’t work for him either.
That he had worked with and taught many black and female lawyers wasn’t enough transformation. One clearly annoyed commissioner was only concerned that he, personally, had not ensured that more black lawyers had obtained pupillage at the bar. As if this is the only thing that transformation is.
174. (2) of the Constitution on the ‘Appointment of judicial officers’ states:
“(2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”
There are nine ConCourt judges and two places to be filled through these hearings. As the JSC is so pedantic about racial representivity, one judge has to be white.
Didn’t make the cut
In the end there were nine applicants, two of which, Unterhalter and Alan Dodson SC, were white. By Wednesday before lunch we knew that both Dodson and Unterhalter didn’t make the cut of five from which President Ramaphosa has to choose two. The five are all black. Consequently, all eleven ConCourt judges will be black.
So, did Unterhalter fail because he is Jewish, white, male, short of court time, privileged, didn’t condemn Israel unreservedly, and didn’t do enough for the narrow definition of transformation applied by the JSC commissioners? Or was it that he was the best qualified for a position, and that couldn’t be tolerated by the JSC?
The JSC’s unprofessionalism is South Africa’s loss. The JSC attained transformation at the expense of meritocracy.
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