By Craig Snoyman

Every now and then I have occasion to use the word “timeous” when typing on my computer. The automatic spell-checker will spew out the word “timorous” as a substitute for the word that it did not have in its dictionary. Both of these words came to mind when watching the interview of Judge David Unterhalter, as he applied for a position as judge of the Constitutional Court of South Africa.

Judge David Unterhalter

I have never been a great fan of watching job interviews. I have never watched the Judicial Services Commission ever interview candidates for the position of judge, although there have been many live transmissions of this. This all changed when a WhatsApp group to which I belong, published a letter from the South African BDS Coalition objecting to the candidacy of Unterhalter on the grounds of his association with the South African Jewish Board of Deputies (SAJBOD). (In full disclosure – I am a proud Jew, but with only a passing interest in the Board). Viewing this letter as an anti-Semitic attack by a bigoted organisation, I resolved to watch the interview.

The interviews before Unterhalter’s were sometimes personal, but the was a marked emphasis on the need for (racial) transformation of the judiciary. One expected a similar pattern to be followed with the Unterhalter interview.

After the opening “comforter” questions in the interview by the Chief Justice, it was the chance of the commissioners to ask questions. First off the bat was Commissioner Lutendo Sigogo. He wasted no time in raising the issue of Unterhalter’s association with the SAJBD, referring to a letter from the Black Lawyers Association which had requested that he resign from the organisation. Unterhalter acknowledged the letter stating he had considered the grounds in the letter but had chosen to resign from the Board on the basis of a possible perception of judicial bias. He also explained the non-political nature of the Board. This was not satisfactory to Sigogo, who then questioned the necessity of Unterhalter’s resignation.

The situation didn’t get much better with some of the other Commissioners. Commissioner Mmoiemang asked Unterhalter about a “two-state solution” to the Palestine-Israel question while Commissioner Notyesi asked him why he shouldn’t take a cooling off period because of his stint on the Board. Commissioner Mpofu (yes, that Mpofu) then linked Zionism with Apartheid and asked for comment about whether organisations that opposed Zionism should be viewed as supporting equality.  The most noticeable commissioner, who stuck to the original pattern, was Commissioner Dlepu who rejected his candidacy holding that Unterhalter, as an elitist white male, had done nothing transformative. To round it off, Commissioner Ronald Lamola, who is also the country’s Minister of Justice saw the need to comment about Unterhalter being “the leader of a Jewish organisation.”

Degrees from Trinity College, Cambridge, the University of the Witwatersrand and University College Oxford, David Unterhalter was appointed in 2018 to the High Court as a judge and since been appointed as an acting appeal court judge of the Competition Appeal Court and of the Supreme Court of Appeal.

Having watched the interview, which finished quite late at night, I battled to sleep. A jumble of thoughts kept running around in my head. While Untehalter is clearly the most intellectually capable of the candidates for the position, it was the attitudes of the commissioners that was most revealing.

There is this vein of anti-Semitism running through the various layers of society. I don’t know what the BLA letter said but it clearly asked Unterhalter to resign from the Board, that commissioners can delve into Israeli politics because the candidate is Jewish, or tell him to give up  posts because of his affiliation to a Jewish organisation or  make allegations of Zionism = Racism, can be mentioned casually at this level to a national audience is  very worrying to me. I think that it should be equally worrying to the Jewish organisations that represent us.

I followed the media this morning, which was equally revealing. There were reports on the interviews, including that of Unterhalter – with headlines that he admitted that he had an elitist education, but no mention of the issues raised here.

Is it because it is simply a non-issue? That this kind of attitude is acceptable?

That statements like those made don’t deserve sanction?  That the media and the policy makers regard these statements as an acceptable norm in South  Africa?

I remain outraged that so little was said. So little about BDS objecting to Unterhalter’s candidacy on anti-Semitic grounds – but then I was equally outraged that so much was said when Chief Justice  Mogoeng’s call for peace in Jerusalem was adjudged an unacceptable intrusion into a  “political controversy”.  That so little is said when anti-Semitic canards are spouted at the highest levels of decision making.  That the BLA can call on a judge to resign from a Jewish organisation, simply because it is a Jewish organisation. But most of all I remain outraged that it doesn’t seem to matter to anyone in South Africa, Jewish or non-Jewish, who is prepared to stand up against this invasive, maybe even institutional, anti-Semitism.

So much for constitutional rights!

Why are the Jewish organisations in South Africa so timorous in defending the rights of Jews in South Africa? Surely it would now be timeous to stand up and say that Zionism is a fundamental part of Judaism and it is not racist. That calling out anti-Semites may cause waves, but it needs to be done. That the underlying current of anti-Semitism, so prevalent at the hearing, should be allowed to triumph simply because good organisations do nothing.

Five judges were recommended for appointment to the Constitutional Court, which excluded Judge Unterhalter who faced questions  from commissioners about coming from a privileged background to having served as a member  of the South African Jewish Board of Deputies. (File photo. Image: GCIS)

It’s time to call out this anti-Semitic behaviour for what it is – a violation of our religious constitutional rights and Jewish identity. A good start would be getting the internationally accepted IHRA working definition of anti-Semitism adopted in South Africa. We saw what happened at the Durban Conference, let’s not let it permeate South African society.

If not now, then when?


Update: As a result of this article it was also drawn to my attention that in the same set of interviews, but this time of the position of judge in the Northern Cape,  secular and non-observant  Jewish candidate Lawrence Lever (SC)  was asked by Commissioner Madonsela (SC) whether observing of the Sabbath would interfere with his judicial duties.  Would Muslim and Christian applicants for judgeships be asked whether observing a Friday or Sunday respectively “would interfere with your judicial duties”?

About the writer:

Craig Snoyman is a practising advocate in South Africa.

While the mission of Lay of the Land (LotL) is to provide a wide and diverse perspective of affairs in Israel, the Middle East and the Jewish world, the opinions, beliefs and viewpoints expressed by its various writers are not necessarily ones of the owners and management of LOTL but of the writers themselves.  LotL endeavours to the best of its ability to credit the use of all known photographs to the photographer and/or owner of such photographs

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