South Africa


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

David Unterhalter’s failed ConCourt bid and white Cape Town mayoral race show identity politics now trumps non-racialism in South Africa
File photo of Judge David Unterhalter. (Photo: Gallo Images / Sunday Times / Katherine Muick-Mere)

Settling into race laagers, like many other countries, South Africans are ensnared in the politics of identity.

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.

From left: GOOD party Mayoral Candidate for Cape Town Brett Herron. (Photo: Leila Dougan | DA Mayoral Candidate, Geordin Hill-Lewis. (Photo: Leila Dougan) | ANC head of local elections, Cameron Dugmore. (Photo: Gallo Images/Brenton Geach) |

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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Comments - Please in order to comment.

  • Joe Soap says:

    “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.” I guess Ferial chooses to ignore Tshwane current mayor and their nominations for Tekwini and others in the coming elections. Show us one white mayor of an ANC town or city – let alone mayors without criminal blemishes like Mzwandile Masina in Ekuhuleni, the late Makhubo and the ex-mayor in Durban, Gumede.


    With regard to David Unterhalter, the chances of him joining many of his fellow South Africa ns overseas must be great..i.e.going where they are appreciated.

  • James Francis says:

    Let’s call this what it’s always been called: cronyism over merit, except racialism (ANC) and populism (EFF) is now used to hide cronyism.

  • Johannes Nel says:

    Threatened communities create laagers to protect themselves against attack. It’s an essential survival strategy in the violent, racist country that South Africa has become. Until things change I’m happy to stay in my laager and defend my family and my community.

    • Johannes Nel says:

      I’ll vote for the DA in the local elections and the Vryheidsfront Plus in the national elections.
      We’ve been here since 1688 and we’re not going anywhere.

      • Jane Crankshaw says:

        I support that… my ancestors have been here since 1667 and we can’t go anywhere else! The world has to just accept that racism is alive and well no matter what tribe you belong to.. It won’t be eradicated ever, it’s part of the human DNA – so let’s just accept it and learn to live with it. Very sad that those that are best qualified to get certain jobs don’t because they have the wrong skin colour…but that’s life! Maybe one day, we will all grow up and realize that the most important thing is to band together so that the human race can survive extinction which is happening faster than we realize!

        • Tebogo Phakwe Phakwe says:

          As painful as it sounds you are right. Racism is here to stay, and it is not only unique to black vs white. The other one that I have learned to live with is tribalism. Tribalism is rife, especially in SOEs, municipalities and government departments. No politician will ever address tribalism, because it is not as politically profitable as racism.

  • Michael Forsyth says:

    Unterhalter brings merit. The JSC prefers mediocrity to downright swill.

  • Richard Thompson says:

    DA candidate for mayor of:
    Nelson Mandela Bay is Nqaba Bhanga, a black man
    Tshwane is Randall Williams, a coloured man
    Johannesburg is Mpho Phalatse, a black woman
    Ekurhuleni is Refiloe Nt’sekhe, a black woman.

    The DA has no mayoral candidate in eThekweni, only candidates for councillor.

    How “representative of white society” is that?

    • Larry Phelan Phelan says:

      Totally agree, yet it doesn’t fit the narrative of being a “racist white party” so let’s ignore those facts and focus on our own prejudiced ones.

  • Zavier Haddad says:

    Not sure me and the author agree on what the term “Non-racialism” means. Anyhow if one takes the authors view on things why stop at “race, gender, ability and sexual orientation”. Why not add: income, height, hair colour, place of birth, spoken first language as criteria for selecting government leaders too….?
    In these public sector roles that have far reaching consequences (most especially for the poor) competence should be the only criteria. Some would sacrifice competence ( and in effect real world jobs, safety and prosperity of mainly the poor) just to be able to say “look at what a non-racial leadership team we have that reflects South African society perfectly.”
    Anyhow let me stop ranting.

    • Paddy Ross says:

      A good rant nonetheless.

    • DONALD MOORE says:

      I agree that the only qualification for any public office (and any commercial position be it in leadership or a worker of any description) is competence. We all know this so why is it given so little expression.

    • Gillian Dusterwald says:

      Well said! The factors over which we have no control (in the case of anything related to where we were born and who our parents were and how we look) should be ignored. Maybe we should not be able to see photos of municipal candidates and their language should be run through a voice synthesizer or something so that we cannot hear how they say something but only what they are saying…Anonymous (fact-checked) profiles could be available to the public, detailing previous accomplishments. In an ideal world.

  • Malcolm Mitchell says:

    Why is it that many reporters such as Haffajee tend to ignore the facts on the ground as pointed out by the comments below?

    • John Coombes says:

      Simple. Whether they like it or not they write their own particular version of the facts as they see them, or want them to be.
      And they are most often myopic in terms of their rants. A number of contributing reporters to DM display that. And the results can be highly destructive when read and spread by those without discernment.
      That’s how fake news really starts – personal bias – and as others have already said which facts?

  • Mervyn Lieberthal says:

    The colour coding as well as gender selection at the expense of the country is becoming completely ridiculous. . Ferial Haffajee, please check your facts before going off on one of your unbalanced tirades

  • Karl Sittlinger says:

    “The DA, on the other hand, is now firmly embedded back in its identity of being a representative of white society”

    • Steven Burnett says:

      The DA is clearly moving towards competing with the FF+, when instead the big gains are left on the table with a battling ANC. A Capetonian DA supporter will have a white male as the mayor, provincial premier and party leader. I have no problem with any of these individuals, but collectively the optics are not good for the future of the party.

      • DONALD MOORE says:

        Steven I am sure you do not want to abandon competence for optics. It might LOOK good but we all know it does not WORK.

      • Karl Sittlinger says:

        The issue for me is a narrative that is being painted that the DA is purposefully racist or trying to pander to a certain race, or in any way is a right wing party….that is simply hogwash and absolutely not in line with any of their policies. Maybe one could argue that there is an assumption and prejudice by a large part of the population that the DA is a white party…but that doesn’t mean it’s a fact. Optics is one thing, actual governance another, especially when the optics are purposefully sabotaged by other parties and some in the media.

  • etienne van den heever says:

    Unterhalter is without doubt one of our finest legal minds. His incomprehensible omission, prompted in part by card-carrying racist Mpofu, speaks volumes about where our courts are heading.
    To continue bashing the DA when the clear facts presented by the makeup of the DA’s mayoral candidate list demonstrates differently does you no credit Ferial

  • Heinrich Holt says:

    Media personality of the year is….Dali Mpofu. He seems to be everywhere. Incomprehensibly incompetent but utterly visible. One must give him that…

  • Philip Mirkin says:

    Dear Ferial.
    This comment may sound accusatory, but I’m just playing ‘devil’s advocate’…
    For the con-court decision you are upset that, in your opinion, they did not pick the best person on merit. But political parties should select representationally? Do I detect a hidden DA supporter underneath ‘media-sheep’s clothing’? 😘

    • Jane Crankshaw says:

      Of course the DA represents white society….just like the ANC represents black society – there is just one white person in CR’s cabinet and she’s a token woman AND a token white! The EFF on the other hand represents those that are stupid! But that’s just my opinion! Lol!

  • Fanie Rajesh Ngabiso says:

    They’re all men. Possibly all married. And likely all wear shoes.

    …whatever next?!

  • Paul Hatty says:

    A pity the ANC has ignored one of the characteristics of the representation of South African society – ability. Or are the ANC representatives their perception of South Africans. They seem to be very skewed to the lack of ability in most of their representatives. Are they also skewed to a lack of sex? When I look around it certainly is not my view of the ability of South Africans. So why cannot the ANC find those with ability rather than sex?

  • Stephen T says:

    Wait, what? Non-racialism means racial representation? No, Ferial Haffagee, non-racialism means non-racial, as in one’s race should mean nothing. A meritocracy is what we should strive for but to do that we need to first correct the own-goal that our Constitution scored right from the beginning: declares the country to be non-racial but then creates an exception to it that makes everything about race.

    I would not be surprised if Unterhalter ups and leaves. I mean there are bits of our Constitution that are a farce and our journalism is, well, it is something.

  • Johan Buys says:

    Ferial : what would a party’s candidate list look like if it were non-racial? I would not bother voting for a party that selects candidates on basis of race, whatever the race involved or for what position. This election I am voting totally local – the best candidates for my home and business wards, I don’t care which party nominated them. Mayoral candidates don’t feature in my selection either.

    • Paul T says:

      Our local DA ward candidate absolutely kills it in serving her ward. 95% of the ward will vote her back in. The fact that our ward is predominantly white and she is Indian, does not matter at all. What matters is she cares about her community and works tirelessly to get the job done. Ferial, your words just reinforce what the identity politicians want us to believe, I know you are in the market for eyeballs but we expect more from our DM journalists.

    • Sydney Kaye says:

      Are you sure? Are you saying you would vote for an ANC candidate if he was a better individual than a DA candidate, even though that would give more political power to the ANC

  • Sandra Goldberg says:

    There seems to be some sort of non sequitur here – all the three white candidates from Cape Town are from different parties-ie DA, ANC and Good- so how on earth does this all go with the claim that the Democratic Party is now in a white corner? Is the writer implying that it is Cape Town that is “White“ orientated?

  • Jennifer Hughes says:

    Excellent observations, as usual.

  • J Reddy says:

    Political parties ought to rise above the fray. That’s the mark of true leadership. There was a time the ANC and some of the DA’s precursors would do just that but, sadly, no longer.

    Ms Haffajee’s observations are sobering, but valid nonetheless.

  • Roger Sheppard says:

    I guess Feral Hafajee has not read much – especially on Gwen Ngwenya’s detailed DA policy statement, which states – ironically in black and white – that the DA stands for NON-RACIALISM. Yep, Mzzz Hafajee: NON-RACIALISM! Get a life…or learn to read!

    Your omission borders on the criminal fake news!

  • Shane Harrison says:

    Time to cancel my subscription with the DM. They continue to allow journalists like Ferial and Groundup to write biased, slanted nonsense. I have better and more balanced publications that I can read!

  • Katharine Ambrose says:

    Our intolerance of difference and otherness is sadly trumping any moves to nonracialism or meritocracy. If the bodies that choose our leaders in the courts or politics go for racial identity over quality it’s because they expect we the people to approve of this. They go for crowd pleasing in order to secure their own positions. If the voters roared their disapproval of mediocrity and racism we’d get better choices. David Unterhalter is sadly our loss.

  • Laurence Erasmus says:

    There are many valid comments on this opinion piece and it would be in the interests of professional journalism for Ferial to respond. But will she?

    • Johan Fick says:

      Seems she doesent even bother to read them. Where is the editor in all of this? I am on the point of cancelling my monthly contribution to DM.

  • Manie Krause says:

    It seem that I, and most commentators below, miss your point on non-racialism completely. Maybe you should elaborate a bit?

  • Ion Williams says:

    The political ideological architecture needs to fundamentally change at its core. The theory of government and social contract theory needs to be fundamentally understood. It’s core principals, value and justice, need to be defined in a more logical coherent way that is acceptable to all. Only then can these issue be resolved.

    • ROD LLOYD says:

      I wonder if in this whole exercise in polarized arguments there is a space in between . All South Africans admired Nelson Mandela, essentially for his total empathy in valuing the born characteristic as their unique right. He straddled across the white / black divide, simply embracing the other, color, friend and foe alike with equal respect.
      It is easy and convenient to reduce the issue to a zero sum game, playing to Mpofu’s game. We ought to lift our level of argument; recognize the difficult but necessary grey areas that is South African society’s lot, and potential strength.

  • Roslyn Cassidy says:

    Bashing of people who are brave (or stupid or naive) enough to take on electoral politics is common across all parties and in every country on the planet. Can’t we accept that none of the 300 parties in our upcoming election are great on race or racism? And really, if you think about with without being defensive, none of us white people in this thread are great on race and racism, are we? What is clear is that most of us don’t even know the definition of race or white racism. It takes a willingness to learn what these words mean, and how they play out in our minds and in the social space. What we do know is that race is a social concept, not a scientific one. Let me say that again. There is NO scientific basis for thinking one kind of person is superior to another. In fact, race may only have became a concept about 500 years ago perhaps when humans began to classify objects and living things. White racism is the ONE-WAY individual, systemic and institutional exclusion of people whose skin is not white. There is hope. A white person’s racism is NOT embedded in their DNA. That is a powerless position to take. A person’s racism is embedded in their mind – and comes from the training we all got as little people to think of ourselves as superior to others. Racism CAN be eliminated in our lifetime. Think about the fact that in the majority of countries there were demonstrations around Black Lives Matter movement. White racism is just NOT acceptable, cool, nice anywhere.

  • Miles Japhet says:

    Two things stick out here. The DA may appeal to higher LSM’s more often but this is increasingly not dominated by white people. Race, as a definer of the audience the DA appeals to, is not the correct proxy.
    Business is not “recalcitrant” in appointing senior black management. The reality is that there has been a shortage of suitably qualified and experienced black talent to date, although thankfully this is improving, and BEE has resulted in inappropriate fast tracking and salary seeking job hopping. This is an inconvenient truth for the social engineers in the ANC.

    • Charles Parr says:

      Well said Miles. My experience in a corporate was that companies go above and beyond to look for good recruits from the designated groups, particularly people with management potential, but the availability of suitable candidates cannot possibly fill the expectation of the staff reflecting the national demographic.

  • Miles Japhet says:

    The members of the JSC are a disgrace to South Africa. Racism at its worst, to the detriment of the very society they are supposedly there to protect!!

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