SA BDS Coalition objection to Judge David Unterhalter for the Con Court
12 April 2021
Text of the SA BDS Coalition complaint sent to Judicial Service Commission:
“The South African Boycott, Divestment and Sanctions (SABDS) Coalition places on record its objection to the candidacy of Judge David Unterhalter for appointment to the Constitutional Court principally on the grounds of his association with the South African Jewish Board of Deputies (SAJBD).
According to the ‘Judges Matter’ website, “Advocate Unterhalter was appointed an executive member of the South African Jewish Board of Deputies in 2020.” [Note: In the JSC hearings Judge Unterhalter disclosed that he had stepped down from the Board in response to a separate objection from the BLA. - PW]
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.
The values that a judge brings to the Constitutional Court are pivotal. According to guidelines developed by the late Chief Justice Ismail Mohamed for the selection and appointment of judges (referred to as the Mohamed guidelines) suitable candidates need to be c ompetent
… both technically as a lawyer, [and have the] capacity and ability to give expression to the values in the constitution.
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. It is disingenuous to reject apartheid in South Africa yet be a defender of Israeli apartheid. A judicial nominee cannot honestly proclaim to be a supporter of human rights for South Africans but be a member 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. The JSC must be concerned when a candidate’s philosophy aligns with interests that cannot transcend the perspectives of a particular race, class or privilege and blindly defends the values and brutal actions of a particular group or of a foreign state, which are not tethered to our Constitution.
Whilst the official mission of the SAJBD is to “promote the safety and welfare of South African Jewry, including combating antisemitism in all its forms, and build bridges of friendship and understanding between Jews and the broader South African population” (https://www.sajbd.org/), the organisation has 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. It is problematic for a nominee to claim to represent our Constitution but be an agent of those that act against our fundamental ideals.
A commitment to racial justice, religious inclusion, and social equity informs our Constitution and should be values that a judicial nominee should recognise have universal application. The SAJBD’s uncritical support of the Israeli state and its efforts to isolate antisemitism from other forms of oppression, such as the oppression of Palestinians, are in fundamental conflict with the progressive, constitutionally mandated adjudicatory paradigm of our Constitution.
We therefore maintain that someone who associates himself with the SAJBD, and its history of opposition to critics of Israel and its efforts to define antisemitism in a manner that denies the human rights of others, is not able to judge matters that come before the Constitutional Court in ways that will always be congruent with the values of our Constitution.
Appointing Judge David Unterhalter to the Constitutional Court will be a grave mistake and will send a wrong message to South Africans and people around the world that share an international commitment to the universality of human rights. We urge the JSC not to grant an interview to Judge Unterhalter. If they do grant him an interview, they should render an emphatic pronouncement that he is unsuitable for appointment to the Constitutional Court.”
Statement issued by SA BDS Coalition, 12 April 2021