The appointment of David Unterhalter as a stain on post-apartheid South Africa
Today (20 May 2024) it was announced that the Judicial Service Commission had decided to appoint David Unterhalter as a Judge of the Supreme Court of Appeal - after multiple failed attempts by him to obtain seats on the Constitutional Court and SCA. Below is a letter written to the JSC as a submission prior to this recent round of ‘interviews’ - though it appears no interviews were conducted this time around so the issues raised below were not publicly ventilated. [Correction: there were interviews in this round but far more limited, as far as I have seen the issues raised in the letter below were not raised and therefore not addressed by Unterhalter]. The possibility that someone who served the apartheid military and may have committed human rights violations to prop up the apartheid regime may have been appointed to a senior judicial position is chilling. That this same individual has historically supported an Israeli state found to practice apartheid, and which recently engaged in potentially genocidal actions, alone should render him unfit for a position that in principle requires someone whose ethical and moral actions and judgement are beyond reproach.
Appointing judges of different ideological and political persuasion could be argued to be desirable. But that argument only holds within the parameters of the principles expressed by the Constitution. Unterhalter’s leadership position in the apartheid-supporting SAJBD and his pro bono work to oppose efforts to pressurise the apartheid-practising state of Israel should have been sufficient to disqualify him. If it is indeed the case that he also served in the SADF - something he has never discussed or expressed regret about - his appointment would constitute an even more terrible stain on post-apartheid democracy. As stain that according to one calculation could last 9 years…
3 May 2024
ATT: Secretariat of the Judicial Service Commission
RE: Interviews of 20 May 2024 and Candidacy of Judge Unterhalter
Dear Members of the Judicial Service Commission,
I make this submission as a concerned member of the public in relation to the forthcoming interviews of candidates for vacancies on the bench of the Supreme Court of Appeal (SCA). In particular, the submission concerns the candidacy of Judge Unterhalter.
The preamble of the Constitution of the Republic contains the following phrases (among others):
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
…
adopt this Constitution as the supreme law of the
Republic so as to -
Heal the divisions of the past and establish a society based on democratic values, social justice and
fundamental human rights
It has recently come to my attention that Mr Unterhalter may have served in the South African Defence Force (SADF) in the apartheid era. I became aware of this via a social media post by a person who claims to have served with Unterhalter at that time.[i] (Further details provided in endnotes below). To my knowledge, and in my subsequent investigation of public information, this has never been ventilated in hearings on Unterhalter’s candidacy for judicial positions.
If Unterhalter did indeed serve in the apartheid military, I suggest that it behoves him to disclose, in full, what he did during that time.[ii] I am sure I do not need to remind members of the JSC that apartheid was designated a crime against humanity and the SADF played a crucial role in enforcing and defending that system. It would be completely anathema to the principles expressed in the preamble of the Constitution, and post-apartheid South Africa, to appoint a person to senior judicial office who may have committed or participated in apartheid crimes – or otherwise served to uphold apartheid.
I would suggest, in addition, that – if true – this casts a further uncomplimentary light on Unterhalter’s role in the South African Jewish Board of Deputies (SAJBD), which has been raised in previous interviews. The SAJDB was actively complicit in apartheid – though it now seeks to downplay or deny that role. Furthermore, the SAJBD has taken positions that amount to endorsing policies and actions of the state of Israel that amount to apartheid (as described in a recent report by Amnesty International that preceded the current atrocities being committed in Gaza). If one puts together (apparent) service in the SADF with leadership in the SAJBD, these both point in the same direction of attitudes towards apartheid that are inconsistent with the principles of the Constitution and the spirit of post-apartheid South Africa. Thereby rendering such a person unsuitable, and one might say unfit, to occupy judicial office in South Africa.
Let me close this submission by pre-emptively addressing two possible objections to the above concerns.
The first possible objection is that the period in which Unterhalter apparently served in the SADF was one in which all ‘able-bodied’ White men of adult age were obliged, by default, to serve in the SADF. Thus, some might argue, Unterhalter was conscripted and cannot be held accountable for his time in the military. Such an argument is inadequate on multiple grounds. First, one would need to establish that Unterhalter was indeed conscripted and did not sign up of his own volition. Second, there were individuals who refused conscription as a matter of conscience, including some who have survived to become senior members of the legal profession. One must then ask whether a person seeking high judicial office is suitable if they have not had such moral inclinations in the past. Third, while some of those who were conscripted could argue they did not fully understand what they were involving themselves in, this argument cannot plausibly be made for Mr Unterhalter. A number of biographies linked to his candidacy have emphasised his father’s apparent anti-apartheid activities, so it is implausible that Unterhalter himself would have been unaware of the nature of the regime. In addition, given his family’s relative privileges, he could likely have accessed the resources to leave the country rather than serve in the SADF.[iii] Finally, even if Mr Unterhalter was seriously coerced into his military service, one would expect him to have voluntarily disclosed such information subsequently – not least if he regretted his participation.
The second potential objection I wish to address is one that has been raised in response to concerns about his role in the SAJBD. Some of his endorsers have sought to argue that Unterhalter has been subject to such criticism because he is Jewish. There is no evidence to support such claims. In which regard I could invoke my own personal background, since one of my paternal grandparents was one of the earliest anti-apartheid Jewish lawyers and was struck off the roll of attorneys and forced to exile because of her efforts. I hope the JSC will not entertain such scurrilous counterarguments and will rather focus on the substantive issues of principle at stake.
Ultimately, it is the responsibility of the JSC to establish whether it is true that Mr Unterhalter served in the SADF, what activities he was involved in, and to then determine the implications for his candidacy.
Yours sincerely,
[i] The post is still available here:
https://twitter.com/Lompie77/status/1738523792052244647
[ii] While I have been unable to find any public confirmation of the claim, there does not appear to be any reason to doubt it. The author of the post, Mr Martin Lowenthal, disclosed this information in the process of praising Judge Unterhalter on social media. In his online biography he states that he (Loewenthal) reached the “rank of full lieutenant in the SADF” (https://www.bulfinchgroup.com/team/martin-lowenthal). It seems reasonable, therefore, to conclude that this information is credible. Presumably, if the information is false then Mr Unterhalter will be able to take the opportunity to correct it.
[iii] Indeed if Mr Lowenthal’s version is true, it seems likely that Mr Unterhalter would have had to do his military service after returning from his undergraduate studies in the UK.