Umm Muhammed Umar

The debate around the exclusion of high court Judge David Unterhalter and Advocate Alan Dodson from the shortlist of two vacancies in the Constitutional Court has served to highlight some conceptual and procedural deficiencies. This is according to Dr Ibrahim Harvey, an independent political rights analyst, and author of ‘The Great Pretenders: Race and Class Under ANC Rule’. Dr Harvey spoke to Radio Islam about why these two legal minds, otherwise quite fairly well respected, had been excluded.

Dr Harvey said that in a column for News24, he had argued that Judge Unterhalter, and advocate Dodson’s exclusion, was to do, primarily, with race. He said it was clear that if one looked at their skills and experience then, their race had been a strong factor in their having been excluded.

Harvey further added that Advocate Dali Mpofu’s comment to the Judicial Services Council, about the elephant in the room being the white male (Unterhalter) highlighted that racism was a major problem. He said, “you can approach it from the Constitution’s commitment to non-racialism and…….in fact, the ANC’s own commitment to the Freedom Charter etc. What had happened there, you know, was, I think a serious travesty of justice.”

Moreover, EFF leader Julius Malema’s line of questioning, and his comments, also seemed to suggest that transformation could not take place without the exclusion of whites. Harvey said that that was the fundamental contradiction because “they have a really narrow understanding and definition of transformation.” He said that he had asked, in his column. what the meaning of transformation was: “you can’t be hanging onto simple notion of race, when you talk of a fundamental, thorough going transformation.” Harvey added that both Malema and Mpofu came from the same ‘stable’. He said, “they just use left Marxist rhetoric, you know about socialism and all that. Essentially (they are) all African nationalists, all of them, including Urban Jima, all of them are African nationalists.” This was a huge problem, where upholding the Constitution was concerned, as the Constitution pivoted very strongly around the notion of, and commitment to, non-racialism.

Further, Harvey said that even long before this issue, if one looked at the appointments to the public and state sectors, it was obvious that the ANC had alienated the so-called minority to the extent that the DA began to develop a serious significant support base amongst Indian people. He added that the Western Cape, meanwhile, was so disenchanted with the ANC, that the ANC would never be given the opportunity to govern it.