BDS attack on Unterhalter ‘defamatory and shameful’, says SAJBD

The South African Boycott, Divestment, Sanctions (BDS) Coalition this week tried everything in its power to stop esteemed Gauteng Judge David Unterhalter from being interviewed by the Judicial Service Commission (JSC) for a position on the Constitutional Court.

In spite of its venomous attack on the judge for his association with the South African Jewish Board of Deputies (SAJBD), his interview went ahead.

After it was brought to the JSC’s attention by BDS, Unterhalter was grilled about his involvement with the SAJBD. Unterhalter briefly assisted the board with the upliftment and welfare of the Jewish and broader community during the direst phase of the COVID-19 pandemic last year.

The BDS coalition earlier this week vehemently opposed Unterhalter’s candidacy. In a letter of complaint to the JSC, the loosely formed coalition accused the SAJBD of being “akin to the Broederbond”, serving as a “conservative organisation that supports and minimises the actions of the Israeli apartheid state”.

It said Unterhalter couldn’t “honestly proclaim to be a supporter of human rights for South Africans” and be a member of the board.

Unterhalter is one of eight candidates being interviewed by the JSC for two vacancies on the Constitutional Court bench. It was announced on Wednesday that he did not make the shortlist for appointment.

During his interview on Tuesday night, Unterhalter said he was asked to serve on the board last year during the pandemic. “You should understand, the SAJBD is concerned with the welfare of the Jewish community, with old-age homes, and burial societies,” he said. “It’s also concerned with people who have fallen on hard times generally, but particularly now in the pandemic, and assisting other communities where there is need and hardship.”

He explained that the board’s other concern was antisemitism, and preventing it.

“It’s not a body that promotes Zionism. It’s a body that has existed for well in excess of 100 years, and its precursor organisations many decades before that. I went onto it because it seemed to me to be about assisting – to the extent that I could – with welfare issues for communities in sometimes very dire need. And I don’t therefore think it’s concerned with promoting Zionism. There are other organisations that do so, but I have no affiliation or connection to them.”

He said that from time to time, the SAJBD engaged in litigation against hate speech concerning antisemitism and on occasion, matters had gone to the Constitutional Court. “It did seem to me that in those circumstances, if I was going to offer myself as a candidate for judicial office in the Constitutional Court it would be appropriate to step away from that organisation because it does have this role, and whatever I might have been able to do by assisting welfare in a time of great need must perhaps yield to the perception that one shouldn’t be connected to a body that is engaged in litigation.”

It was for this reason that Unterhalter stepped down from the SAJBD.

“I don’t think my connection in accepting a position on the SAJBD is one that impacts and is connected to Israel and the Palestinian and Israeli conflict, which is an entirely separate matter,” he said.

He stressed that the Jewish community was made up of people with “radically different views” about Israel and the Israeli/Palestinian debate. “Because members of the Jewish community are so varied in their views across the board on this point, I would have been very uncomfortable to be in an organisation that took a particular position on that issue,” he said. He stressed that he saw taking on this SAJBD role as “being able to do something for welfare”.

Asked about his views on a solution to the Israeli-Palestinian crisis, he replied, “A two-state solution, although it’s now unfortunately one that seems to enjoy much less currency than it did in decades gone by, remains the only solution I think feasible, but JUST in what is a hugely complicated and difficult conflict.”

The SAJBD on 14 April lambasted BDS for attempting to have Unterhalter rejected from applying for this position, describing the organisation’s efforts as “yet another shocking display of bigotry and intolerance”. The board said it was an attempt by BDS to “sow division and hatred in our society”.

SAJBD national director Wendy Kahn, said: “When calls are made for Jews who serve on the Jewish community’s democratically elected representative body to be excluded from public service, it amounts to gross antisemitism.”

“There is a long and dishonourable history of Jews being targeted for boycotts and other discriminatory treatment on the basis of their religious and/or ideological beliefs,” the board said. “The demand by the SA BDS coalition that anyone associated with the SAJBD be denied the right to serve on public bodies like the Constitutional Court is just the latest chapter in this shameful saga.”

It said that throughout its existence, the BDS movement had “persistently incited hatred” and “even harm” against the mainstream Jewish community and its leadership.

Milton Shain, a local antisemitism expert and emeritus professor of history at the University of Cape Town, said, “Identifying as harmful to career prospects involvement in a legitimate Jewish organisation which serves a specific minority that enjoys full constitutional rights reeks of antisemitism.”

He said it was “preposterous” to penalise someone for generously assisting a legitimate civic organisation in a democratic country.

“The SAJBD has a proud record of dealing with issues pertaining to Jews and safeguarding the interests of this tiny community, which has never numbered more than 120 000 and numbers today a mere 50 000. It seems to me that those criticising Judge David Unterhalter are confusing the board of deputies with the South African Zionist Federation, which deals with issues pertaining to Zionism and the state of Israel,” Shain said.

“Even if this is the case, it needs to be noted that the South African Zionist Federation is a legitimate civic organisation and involvement in its affairs shouldn’t preclude any possibility of representing the legal [or any other] fraternity at the highest level. Some of the greatest legal minds in the country have enjoyed associations with both organisations.”

Retired Judge Dennis Davis, who previously served the community as Cape chairperson in 2004, told the SA Jewish Report it was “an outrageous complaint” by the anti-Israel lobby.

“It’s irrelevant. It’s not as if he is doing more than promoting the welfare of his own community. When I last looked, it wasn’t illegal to be a Jew in South Africa. It’s a right to serve your community and its local welfare.”

He said he thought Unterhalter was a hugely deserving candidate for the esteemed position, but agreed this was “a sensitive issue for obvious reasons”.

Mark Oppenheimer, an advocate at the Johannesburg Bar, said Unterhalter was “internationally regarded as a jurist of the highest calibre”.

“Before he was elevated to the bench, he appeared before the Constitutional Court in a range of landmark cases that have vindicated fundamental human rights for all who reside in our country. He would be an outstanding candidate for a position on our apex court. The attack launched by BDS demonstrates its venomous attitude towards South African Jewry and Israel,” he said.

A well-known Cape Town advocate who asked not to be named for professional reasons described the BDS complaint as “toxic”.

“It’s appalling, blatant antisemitism, and many of my colleagues who aren’t Jewish agree with me,” he said.

Unterhalter, a former winner of the Professional Excellence Award at the Absa Jewish Achiever Awards, was born and raised in Johannesburg. He attained his BA degree from the University of Cambridge, LLB from the University of the Witwatersrand, a Bachelor of Civil Law from the University of Oxford, and an MA from Cambridge. In 1990, he was called to the Bar in South Africa, where he practised as an advocate for 27 years. He was appointed judge in 2018, and has since presided over a number of high-profile cases.