David Unterhalter. Picture: SUPPLIED
David Unterhalter. Picture: SUPPLIED

“The bench should never be representative, for the duty of a judge is not to represent the views and values of any section of society but to do justice for all,” says Sir Harry Gibbs, chief justice of the high court of Australia from 1981 to 1987.

In line with Gibbs’s view, the key considerations in the appointment of judges are qualifications, experience, fit for purpose and integrity.

The question that arose in the SA chapter of the BDS (Boycott, Disinvestment & Sanctions) bid to prevent David Unterhalter  SC's consideration for a vacancy in the Constitutional Court was whether his short-lived membership of the SA Jewish Board of Deputies (SAJBD) should disqualify his application.

It is common cause that many incumbents of the bench and their predecessors held views and de facto allegiance to various political, social and religious organisations. If any of these organisations were — by virtue of their constitution — racist, discriminatory or propagated acts that harmed or prejudiced people, it would be cause for concern.

In the absence thereof, Unterhalter’s credentials are exemplary. His experience, scholarship, integrity and history — both familial and personal — are without blemish and the concerns of BDS, made manifest in his subsequent sidelining as an applicant, are accordingly without foundation.

As SAJBD associate director and Jewish Affairs editor David Saks acknowledged in August 2019, “it was only very late in the day that Jews, on a collective level, began to rise to the moral challenge that this (apartheid) posed. I don’t believe that this is a cause for endless breast-beating and self-flagellation, but it was undoubtedly a lost opportunity.” Surely the same embedded hope and latitude applies to the SAJBD’s views on the Israel/Palestinian issue?

Clearly, in respect of the BDS’s objection more than some realisation needs to be given to the fact that Unterhalter’s views were and are outliers from the “collective level” Saks refers to in both instances (apartheid and Israel/Palestine), and  as such  the objection lacks merit. It both tarnishes the image and has robbed us of the prospective contribution to our Constitutional Court from a nuanced mind.

Ghaleb Cachalia, MP (DA)
Via e-mail

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