By Adv. Craig Snoyman
The last time that Judge David Unterhalter was interviewed for the position of Constitutional Court judge by the Judicial Service Council (JSC), the interview process was a free-for-all, or as the legal fraternity might say “highly irregular”. While voices were raised, in the Jewish community at least, about the apparently antisemitic questions posed to him by five different commissioners, his was a “generic” attack based on his religion and affiliation. Another candidate, Judge Dhaya Pillay, was subjected to a more vicious personal attack – mostly by Commissioner and EFF leader Julius Malema – based on her association with former Finance Minister Pravin Gordhan. Judge Kathree-Setiloane was required to address false allegations about a complaint made against her by a former clerk some years ago.
An NGO, the Council for the Advancement of the South African Constitution (CASAC), represented by Adv Ngcukaitobi SC, took the JSC to court alleging the JSC exceeded the bounds of acceptable questioning to determine the fitness of the candidates. The confidential deliberations, which the JSC was obliged to disclose, revealed that Unterhalter was regarded as a very able judge, but he had only been at the bench for three years and “he can afford to wait”.
As a result of CASAC’s successful court challenge, new interviews had to be held. The same candidates were interviewed – save for Judge Pillay, who was no doubt still traumatized by the previous verbal mauling. These proceedings were far more civilized than the previous one. Parties were asked about their judgements and their approach to the Constitutional Court. Judge Kathree-Setiloane was not asked about her clerk’s complaint.
Then it was time for the interview of Judge David Unterhalter. Having clearly learned from the previous proceedings, he went to great lengths to correct the misapprehensions of the previous interview. He told the panel that Adv. Ngcukaitobi SC had put forward his nomination. He emphasized how he represented South Africa and Africa and was the head of the Appeal Court of the World Trade Organisation for 11 years. He showed that he had been a judge for considerably longer than three years. He confirmed that he was presently an Acting Judge in the Supreme Court of Appeal. He referred to his experience in setting up two legal widely respected organisations which fight for the rights of the underprivileged and for human rights generally. He had a list of junior African counsel, which he had assisted. He told the panel about his continuous participation in litigation at the Constitution Court since its inception. For anyone involved in law, his list of over 150 reported cases was also hugely impressive.
The panel interview commenced, with each panelist limited to two questions per candidate. In the absence of the recently deceased Lutando Sigogo, the questioning was commenced by Madonsella SC. (The same Madonsela who previously asked Judge Lever whether the observing of the Sabbath would interfere with his judicial duties.) His first question didn’t differ significantly from the one raised by Sigogo. He raised the issue of Unterhalter’s association with the SAJBD (South African Jewish Board of Deputies) , referring to letters of the Black Lawyers Association and BDS objecting to him:
“because he was a member of an organization allegedly pro-Zionist.”
So after the CASAC review, where the rules of the game were set out that one should play the ball and not the man, this little curve ball was thrown – with no objection by the (new) presiding officer. Zionism is not banned in South Africa. It remains a lawful activity and ideal in South Africa. The organization of which he was a member – the South African Jewish Board of Deputies (SAJBD) – is a lawful organization that assists with the needs of the South African Jewish (and other ) community members. Our Constitution expressly allows for freedom of association, freedom of speech and freedom of religion. So why was a question like this thrown into the mix, without being called a foul? Does Unterhalter’s association with an allegedly pro-Zionist organization affect his ability to be a Constitutional Court judge? If it doesn’t affect his ability as a High Court judge or as a judge of Appeal, what relevance does it have to his present application? Not one of his judgments was attacked – In fact on Appeal, he wrote the judgment that overturned another (successful) candidate’s erroneous judgment. Should one even address issues raised by “lay” organisations when they have no relevance to his legal ability? As for the SAJBD being an allegedly pro-Zionist organization, Unterhalter had denied it at the first interview and denied it again in this interview. There are reasonable boundaries for the questioning of these candidates. This question was a trespass on prohibited territory. Even if Unterhalter were to admit to being Zionist (Oy, the scandal!) this should not affect his suitability, simply because our Constitution guarantees these rights! And at what stage should one question the bona fides of these organisations that submitted these objections. One organisation is presently supporting the disgraced Judge Hlope for the position of Chief Justice of South Africa, while the other is vociferously supporting Legal Services ombud, Judge Desai in his misconduct hearing arguing that his repeatedly expressed politically anti-Zionist conduct should be viewed as freedom of expression? (The JSC is involved, or affected, by both issues).
In a previous article on this media platform, it was questioned whether the JSC was a racist organization. More specifically this was based on a quotation in a letter from the JSC, in a response to a letter from the SAJBD, where the JSC was quoted as stating:
“The questions relating to the association with the SAJBD dealt with concerns that the organisation supports Zionism which is viewed as a discriminatory form of nationalism and potentially in conflict with the values contained in the South African Constitution.”
This statement has never been retracted by the JSC. The JSC is not a body competent to make such a determination. Madonsella SC’s question, which to use the legal phrase, “I submit was irregular, improper and legally irrelevant,” tends to affirm this underlying strain of antisemitism that was previously evidenced by the JSC. The linking of the community-oriented SAJBD with the “discriminatory form of nationalism” that is Zionism, serves only to tarnish the image of, and discriminate against both Jews and Zionism. And don’t forget, that invariably, the only time that one uses the word “alleged” in South Africa is when it relates to a forthcoming criminal matter. In this case, the suspect is an organisation that is accused of the crime of being “allegedly pro-Zionist”.
Should one be surprised?
The JSC’s statement is on record, Madonsella SC remains unrebuked and once again, arguably the most qualified candidate has been rejected for a position on the country’s apex court.
Is it a warning to South Africa’s Jews?
The majority party in South Africa regularly expresses a similar sentiment and now even one of our highly respected legal NGO, formed to represent the poor and indigent of South Africa – The Legal Resources Centre – has ventured outside the South African sphere and joined forces with international bigots to draft and submit a report seeking to have Israel’s observer status at the African Union withdrawn.
So with the visible current of anti-Zionism and all of its murky undercurrents, there are another two more Constitutional Court posts up for grabs shortly. Unterhalter, unsuccessful in this encounter, is again a candidate for these posts. Will he again, ostensibly, be rejected on the elephant-in-the-room grounds that he is white and male? Or is there also an additional, deeper, darker reason, one that allows “alleged pro-Zionist” issues to enter into the fray when considering his legal ability?
And for the Honourable Judge Unterhalter AJA, will the next encounter be his Constitutional Court requiem or just another sequel?
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