David Unterhalter’s failed ConCourt bid and white Cape Town mayoral race show identity politics now trumps non-racialism in South Africa

It’s a sad day when a polymath lawyer like David Unterhalter can’t find a bench on the Constitutional Court. The Judicial Service Commission hearings to fill two ConCourt vacancies on 4 October failed to recommend Unterhalter’s candidacy even in the rerun presided over by the Acting Chief Justice Raymond Zondo.   

He faced questions about his race and advantage by JSC Commissioner Dali Mpofu for a second time, which is likely to have been his disqualifying factor. Unterhalter is recognised by his peers as a leader among them, especially in commercial, trade, competition and its intersection with the Constitution. He has served numerous stints on the World Trade Organisation’s dispute settlement body, like a court of global trade jurisprudence.  

Yet, he failed to make the cut a second time; this time, at least, the JSC avoided asking anti-Semitic questions of the Jewish judge.

In a different race, the run for the plum job of Cape Town mayor on 1 November has also revealed that the constitutional pillar of non-racialism is a slogan alone. The city’s lead slate has three good politicians leading it: the DA young gun Geordin Hill-Lewis and the Good party’s Brett Herron, with the ANC’s Cameron Dugmore leading the party’s election campaign (the ANC has a policy to not announce its mayoral candidates beforehand).  These three are the essence of the race, although there are other candidates, including Lennit Max, who as a person of colour,  is standing, ironically, for the Freedom Front Plus.

Non-racialism is a uniquely South African political and constitutional construct. It has always meant that you should strive to comprise leadership teams that reflect South African society – by race, gender, ability and sexual orientation. For the ANC in particular it has historically meant a moral consideration of non-racialism in action in the composition of its leadership cohorts across all sections of the executive and Parliament. But since the administration of former president Thabo Mbeki, this commitment has steadily eviscerated to reach a position decried by incumbent President Cyril Ramaphosa. Giving testimony at the Zondo Commission of Inquiry into State Capture earlier this year, Ramaphosa said he found it more and more challenging to confirm diversity as a key plank for public office when the ANC NEC made deployments to the state.  

The party is in the thrall of black African nationalism, often responding to the private sector’s recalcitrance to elevate black African leadership. 

The DA, on the other hand, is now firmly embedded back in its identity of being a representative of white society after it experimented with Mmusi Maimane as a black leader. It is doing so to fight off a spirited advance by the Freedom Front Plus, which took out a chunk of DA support in the last election. With former party leader Helen Zille now the font of its intellectual philosophy, her drift to the far right of group rights is expressed in party positions.

This means that non-racialism is kaput in practice but still stands as a philosophical key pillar of the Constitution. Like many other countries, we are ensnared in the politics of identity as a motivational force. And great brains like Unterhalter’s will not be called to public service – while spaces in opposition politics or the private sector will be regarded as off limits to black South Africans as we settle into race laagers. Like back in the day. I hope Archbishop Emeritus Desmond Tutu is enjoying his birthday festivities as he turns 90 on Thursday, 7 October and does not see what we are becoming. DM

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