What's the JSC got against David Unterhalter?

Jeremy Gordin on the extraordinary lengths the committee is going to to ensure the judge's non-appointment to the ConCourt

Just to refresh our memories a little, the story so far runs something like this.

At the beginning of October 2021, the Judicial Service Commission was forced to rerun its April 2021 Constitutional Court interview process, after the Council for the Advancement of the SA Constitution (Casac) legally challenged “the lawfulness and rationality” of the April proceedings.

In plain English, questionable lawfulness and rationality meant that in April potential Concourt justices appearing before the JSC had been bullied, asked inappropriate questions, been forced to listen to bizarre interpolations, and then were excluded from the shortlist on specious grounds.

The JSC went ahead with round two – producing exactly the same shortlist as it had in April – and in December last year two of candidates were chosen by President Cyril Ramaphosa to fill two vacancies at the Concourt.

However, the main subject of this article – Gauteng high court judge David Unterhalter – having been excluded from the shortlist for the Concourt bench in April 2021, was again excluded.

Then at the start of February this year we were given the pleasure of witnessing the JSC interviews for the post of the country’s Chief Justice (CJ). This, as we might recall, was a circus beyond all circuses; a toxic mess, as someone remarked.

Gauteng Judge President Dunstan Mlambo was accused of sexual harassment on the basis of completely anonymous rumours. Dali Mpofu SC insinuated that he had had a past sexual encounter with Judge Mandisa Maya – but then explained that this was merely a joke. Then the EFF’s Julius Malema, aided and abetted by Mpofu, climbed into then deputy-CJ Raymond Zondo. And so on and so forth.

But in March this year, President Cyril Ramaphosa appointed Zondo as the next CJ of the RSA with effect from 1 April 2022. And during the last few days – during which the JSC held interviews to fill (more) missing posts on the Concourt – one assumed that the positive influence of CJ Zondo, as well as the replacement of Mpofu SC and Griffiths Madonsela SC by Kameshni Pillay SC and Sesi Baloyi SC would help make the proceedings more, er, courteous.

Oops; not so. Along came the interview of (now acting Justice) David Unterhalter for a post on the Concourt bench – and the commission seemed to revert to its earlier incarnation. Well, that’s what its detractors and the pro-Unterhalter folk are saying – while those who didn’t vote for Unterhalter will say that the JSC members were just doing their job.

But I’m getting a little ahead of myself. The point is that on Wednesday this week Unterhalter SC was not short-listed for a job on the Concourt. As the JSC put it: “Unterhalter SC was excluded from nomination for appointment to the constitutional court by majority vote”.

And so, as just intimated, there has been among the Unterhalter supporters – which include most senior law folk – some very serious shock-horror.

Part of the reason for this is as follows. There are two vacancies on the Concourt at present, occasioned, if I have this right, by Justices Khampepe and Jafta having been due to retire in October 2021. Now, the Constitution expressly states that the JSC must prepare a list of nominees with three names more than the number of appointments to be made and submit this list to the president. [i] This meant that the JSC needed to submit five names to President Ramaphosa.

As it happens only five candidates applied: Judge Fayeeza Kathree-Setiloane, Adv Alan Dodson, Judge Mahube Molemela, Judge David Unterhalter, and Judge Owen Rogers. After the interviews held on Tuesday the JSC deliberated and then announced that it had submitted only four names – Judge Fayeeza Kathree-Setiloane, Adv Alan Dodson, Judge Mahube Molemela, and Judge Owen Rogers – which means that only one vacancy can be filled. Which means that the JSC is going to have to do this all over again, pretty soon. What joy awaits us.

What this also means, is that the JSC has just clearly told Unterhalter not just that they thought there were better candidates, as before, but now also that he was a complete nonstarter; he need not bother to darken their door again. Full stop. End of story.

This is, by the way, as good a time as any to interpolate that, whatever else they might say, junior and senior law folks of all ranks and sizes will tell you that Unterhalter is in his main field (constitutional law) one of the cleverest and most highly competent practitioners around, no question – and that to leave him off the shortlist just for the heck of it is simply outrageous; that there must be another “agenda” at work.

Well, let’s first refresh our memories about whom we’re talking about. Twenty-five people sit on the JSC panel. There’s the CJ, the SCA president, and a representative of all the judges president (3 people); four “legal” representatives of the state president (4); and four attorneys and advocates including Mthatha attorney Mvuzo Notyesi and Somerset West attorney Ettienne Barnard (4).

Then there’s “a teacher of law” and two “revolving” seats, one for the judge president of the division, one for the premier of province or his/her appointee (3); eight ANC members, if you include, as I do, minister of justice Ronald Lamola (8); and the EFF, DA, and IFP each has one representative (3). The vote for nominees is secret (I am told) but there is extensive discussion.

And what did this panel tell us via its spokespeople about Unterhalter? ... That the JSC declined to tell us (me and you) why Unterhalter had been found unfit for the Concourt bench. Advocate Sesi Baloyi, a new Ramaphosa-nominated commissioner, said the Zondo-written report to the president would explain why the commission did not recommend Unterhalter, who is, incidentally, serving a second term as an acting justice of the constitutional court.

But if Ramaphosa – who was represented at the 2012-14 Marikana commission of inquiry by Unterhalter – ever willingly tells us (while president) why Unterhalter was not recommended for the Concourt bench by the JSC, I shall fully expect to see boiled frogs fly.

What then can we learn from those who attended, or have watched the YouTube recordings of, the proceedings?

Unterhalter’s major blaps seemed to be when he conceded on Tuesday that he was part of the Concourt quorum that signed off on another judge’s dismissal of an application for leave to appeal, after he had been one of two judges who denied the same applicants leave to appeal to the SCA.

Unterhalter apologised; he said it’d been simple human error that caused him not to recognise that he’d seen the matter while acting at the SCA – and therefore he had not recused himself while acting at the Concourt.

The issue was raised by Mthatha attorney Notyesi, who had apparently “found” copies of both rulings, and the EFF’s Malema quickly joined in the fray, arguing that Unterhalter’s lapse was so heinous that Unterhalter surely couldn’t be allowed to sit on the Concourt.

Four points. The first is that Notyesi’s “discovery” of the two rulings and the rapid climbing-in on the issue thereafter by Malema reeks of an orchestrated plan to whack Unterhalter where it hurt most.

Second, however, one does need to note that each of the candidates was asked the same questions about petitions to the SCA and the Concourt. Level playing field and all that. Surely Unterhalter should have seen what was coming before it came? I’m just saying.

Third, one senior SC said to me that in his view Unterhalter was the author of his own misfortune. “Once you have admitted to having made a mistake, you’re in trouble.” Moreover, he added, he felt that Unterhalter’s “explanation” for what had happened – during which Unterhalter mentioned in passing that everyone else at the Concourt, fellow justices, clerks, etc., had not noticed “the mistake” – was not, to put it mildly, a “collegial” way of handling the matter. “You don’t win friends and influence people by pulling the whole court under the bus with you. What’s more,” he continued, “Malema was obviously salivating, so, yes, Unterhalter cooked his own goose.”

But the fourth point, however, is that yet another senior and experienced law person [ii] said that literally scores of such denied petitions come across judges’ desks and that it is virtually impossible to remember them all. Most importantly, he said, he did not think that Unterhalter had in fact fallen foul of anything.

“The fact is that the petition denied while he was at the SCA would have related to an appeal directed against a ruling delivered by the high court. The one that came to the Concourt would have been a fresh one related to the decision made by the SCA. They were different – and I’d argue that in fact Unterhalter was entitled to sign off on the second one.”

I don’t hold a chair in Law, but it seems to me that the issue of the two signed petitions was a proverbial storm in a teacup and was clearly orchestrated. It’s common cause, if you’ll pardon the old saying, that a person who wants to beat a dog will always find a stick. The fact is that no one else in the court picked it up – or has ever picked it up when it’s happened to many other judges.

The big question (for me) is: who dug up Unterhalter’s “mistake,” who leaked it, and why?

Additionally, commissioners challenged Unterhalter on his claim that he had recruited a high number of black women as junior counsel so as to give them a step-up in their profession; commissioner Kameshni Pillay, representing Advocates for Transformation, said the list he’d proffered had only seven or eight names and that his list seemed to have been put together only because he wanted to get onto the bench. More comments of this nature followed. Noteworthy, however, is that neither Judge Rogers nor Adv Dodson was asked the same sort of questions.

So, what happened, brothers and sisters?

Well, the JSC has found that Unterhalter was not “appropriately qualified” for the Concourt. This seems a trifle odd, given that those who know say he was the number one candidate in terms of constitutional expertise. Or the JSC has found that Unterhalter is not an appropriate person for the Concourt post – even though he’s a high court judge and an acting member of the SCA and Concourt.

And why has this happened?

Based on the above “evidence,” and on interviews with seven or eight “major players” – though not all concur – I’ll go with the following:

There is clearly an “anybody but Unterhalter” vendetta pertaining at the JSC. Why?

One, notwithstanding Unterhalter’s attempts to evade such labels and “connections,” he is considered a “clever white liberal” connected to the DA (and previously to former DA leader Tony Leon in particular).

Two, Unterhalter is Jewish – which is not of itself considered a sin – but being Jewish is to be connected with Israel and Israel has become completely bad news. It doesn’t help that Unterhalter resigned from the SA Jewish Board of Deputies (SAJBD).

Three, Unterhalter is considered too clever; this attribute is frowned upon in circles where mediocrity is King. Jeremy Gauntlett SC and Geoff Budlender SC, to take but two examples, suffered the same fate – probably for the same reason.

What of the future? The JSC decision could be reviewable by a court – if someone is willing to go down that route. Alternatively, because the JSC has messed up technically – it was supposed to produce five candidates – Ramaphosa could kick the matter back to the JSC.

But I wouldn’t hold my breath waiting for Ramaphosa to do that. And, even if he does, I wouldn’t, if I were Unterhalter, go anywhere near the JSC again. Who needs to suffer this sort of stupidity and prejudice repeatedly?


[i] If the president advises the JSC that none of the nominees is unacceptable and that any appointment remains to be made, the JSC is required to supplement the list with further nominees.

[ii] Readers are going to have to trust me – I assure you that all of these people that I quote are very real, very senior, and very separate. The trouble is that they don’t want to be quoted by name – and in some cases can’t afford to be.