By Adv. Craig Snoyman

The first article that I ever wrote for Lay of the land was on Judge David Unterhalter. Little did I realise at the time that this would be the first of a series of articles on the judge. So without further ado here is article number 3 in the series and no doubt there will be further articles to follow. Each episode gets a little more intricate.

The first time Judge David Unterhalter appeared before the Judicial Services Commission (JSC) applying for a post as constitutional judge,  the interview process was so viciously and irregularly conducted that it was subject to a review and JSC conceded that it had to be redone.  The antisemitism displayed towards Unterhalter by several of the commissioners was both palpable and shocking.  The second time he appeared; the antisemitism was still there, but it was not quite as blatant.  All of which leads to this, his third appearance before the JSC.

In the light of the debacles concerning the process of election of judges in the recent past,  the  JSC passed regulations concerning the manner in which the interview process should be conducted. Nominees  for the post of judges are interviewed in order to determine whether they are fit and proper persons to be appointed to the specific judicial  posts.

Our Constitution has a provision  that  requires the JSC to  submit to the President three names  more than required to fill a vacancy in the Constitutional Court. If there is only one vacancy, then the JSC must submit a minimum of four names. For two vacancies, five names are needed, and so forth.

On this occasion there were two vacant positions in the Constitutional Court,  with interviews to be held in April 2022.  Five people applied for these posts.  There were three white males and two African females. There were two vacant positions in the Constitutional Court.  Thus, in terms of the provisions of the South African Constitution,  the JSC would have had to submit all five names to the President, stating their preference, but the final decision for the appointments  would be left to the President.

Our Constitutional Court presently has no white judges on its bench.  While there is no requirement that there be white judges on the Constitutional Court, the general opinion of jurists is that the court  should “reflect broadly the racial and gender composition of South Africa” suggesting that one of the white men would be appointed.

One of the white males was Judge Unterhalter,  presently an acting judge in the Constitutional Court.  He has been acting for the present court term (about three months) He had applied for the position of permanent Constitutional Court Judge twice previously, and was unsuccessful of both occasions.

There were two other white men as candidates. Advocate Alan Dodson, who is not a  judge, was seen as an outsider. Judge  Owen Rogers – a first-time candidate-  was viewed as having his age count against him. He is 64. Unterhalter, a sitting Acting Constitutional Judge,  was the hot favourite for the post.

When being interviewed for the position, the commissioners will be provided with the case judgements (at least the reported ones) handed down by the candidates. Some of my colleagues had been given the task of  researching the reported cases of the candidates and providing opinions as to the merits and demerits of each case. These opinions were then forwarded to the Commission together with the cases. The volume of  Unterhalter’s reported cases, in excess of over 300, would no doubt have resulted in  a couple of sleepless nights for the researchers.

Unterhalter was the last candidate to be interviewed for the post. Until that stage, the interview process had been very “parev” with nothing out of the ordinary.

This all changed with the Unterhalter inquisition!

The first attack came from commissioner Mvuzo Notyesi, who raised an issue  that Constitutional Court Judge Unterhalter had ruled on the same judgments that he, as Supreme Court of Appeal Judge had ruled on, when he should have recused himself.  This attack caught Unterhalter wrong-footed, and he was totally surprised by the ambush question. Chief Justice Zondo, presiding over the interview, stated that it had been previously been agreed that this issue would not be raised, as it had not been timeously brought to the Commission’s attention.  At that stage, the voice of Commissioner Julius Malema was heard, insisting that the matter be addressed so that the matter could be discussed when the panel deliberated over the suitability of the candidates for the position. Malema made  it clear that he was going to ensure Unterhalter did not receive the nomination. It seemed that it was Malema who had found copies of both rulings and forwarded them to Notyesi. The discovery of these Appeal  judgments  and  even Concourt judgments did not form part of normal  background research. It would have required single-minded dedication  and an extraordinary amount of time and effort to locate  these unreported one-page judgments. 

Malema had his way, and notwithstanding the previous agreement, these judgements now became part of the record. It should not be forgotten that Malema had previously bullied Zondo, when Zondo had applied for the position of  Chief Justice, in a previous judicial appointment hearing. This conduct was again noticeably in evidence.  It was after Malema had his say, Zondo discarded his ruling of not using the undisclosed issue.

Unterhalter, after having been given the opportunity to examine  the issue, explained that these matters were applications where the High Court has dismissed and  had already refused leave to appeal. Then there had been a further application made to the Supreme Court of Appeal to reconsider the issue. Only the papers presented to  the Court were read. These were read privately in chambers with no further legal input from the parties. On this basis, he and another judge had confirmed the lack of merit and a decision to dismiss the application was made.  The Supreme Court of Appeal having dismissed the application, the party had persisted in further seeking that the Concourt reconsider the application and  the refusal of both  the High Court and the Supreme Court of Appeal to allow the matter to be appealed. The Concourt judges individually as well as in their own chambers considered the matter based purely on the papers before them  and each independently decided to dismiss the application.

Unterhalter conceded that he had in fact dismissed an application for leave to appeal in the Concourt, after he had been one of the two judges who denied the same applicants leave to appeal to the Supreme Court of Appeal. He had not noticed that he had dismissed the application as his name only appeared on a single page  at the back of the  annexures  and did not appear in the main application. He also pointed out that none of the other judges in the Concourt or their clerks had picked up this issue either. He apologized and said he should have recused himself as he had done in other matters.  It was a human error, he claimed. Malema argued that errors like this lead to a lack of respect for the courts.  Notyesi expressed his concern that Unterhalter had not read the papers, which  allowed  for the error to arise. Zondo seemed to suggest that it was the Concourt procedure that was at fault and  said  that he would introduce a procedure to ensure this would not happen again. Malema then again verbally attacked Zondo and made it clear that Unterhalter’s  conduct was relevant and had to be taken into  consideration, but it was unacceptable. It was mistakes like this that destroy the image of the court, opined Malema.

Then it was the chance of Commissioner and Member of Parliament Singh, to indulge in a little  Unterhalter bashing. He gratuitously reintroduced a subject from a previous JSC interview that had previously been  strongly and vocally protested  as antisemitic – asking for further comment on Unterhalter’s membership of the SA Jewish Board of Deputies  executive committee which obviously included the Board’s  nature and function.  This question not only fell foul of the new regulations but had no place in the examination procedure. The question  was irregularly permitted by Zondo, although it bore no relevance to Unterhalter’s  legal capacity or his fitness as a judge.

Then the knife in his gut was twisted just  a little more.

The  black female commissioners took aim at Unterhalter.

He had previously been attacked for not producing a list of disadvantaged counsel that had  acted as his juniors.  Now that  such a list had been produced, he was now attacked on the basis that he had only appointed 7 or 8 black female advocates to assist him (it was never made clear how many black male counsel juniored him), Commissioner Pillay SC, whom Unterhalter acknowledged had also acted as a previously disadvantaged female  junior to him, attacked him for  paucity of his use of black female junior advocates. She then castigated him for observing the standard practice of using junior advocates rather than utilising  more senior black female practitioners.

After caucusing for discussion on the relative merits of the candidates,  the JSC  put four names  forward to the President for consideration of the post of Concourt  judge.

Unterhalter’s name was excluded from the list. 

The only  legally justifiable reason for Unterhalter to have been excluded from the list was that he was not a fit and proper person to be appointed.  By excluding him, either the JSC had  to have very good reasons for the exclusion, or they have disgracefully defamed him.

In South Africa, decisions are normally  made on a balance of probability. Sometimes there might be  consideration  of “the only possible inference” leading to a conclusion.  The  issues that the JSC would likely have discussed about Unterhalter’s suitability  are the following:    

(a) that he did not recuse himself when he should have  – an  error which was committed by every other  Apex Court judge and clerk;

(b)  his  lack of commitment to transformation in that he had assisted so few black female junior advocates. This should then have been raised with any other candidate. Their contribution to the transformation process was never discussed.

(c)   his past position on the South African Jewish Board of Deputies (SAJBD) – previously dealt with in my previous articles. Other candidates’ external activities were not discussed.

(d)  he had produced no written judgments while sitting on the Concourt bench (coupled with the oxymoronic proposition that he was too junior a judge to  assume a position on the Concourt.

(e)   a combination of some, or all of them.

Was the decision to exclude Unterhalter antisemitic? It’s unlikely that we will ever know. Can it be said that it is the only possible inference? It certainly was not made on a balance of probability. All one can say is that Unterhalter is probably one of the most brilliant jurists presently in South Africa, with a wealth of knowledge and experience. Malema’s animus was clear from the start; Notyesi raised an extraordinarily difficult-to-find issue that was never even intimated to any other candidate, also suggesting malicious intent. Singh wrongfully attacked Unterhalter’s constitutional right of freedom of association, on  an issue which has been previously viewed as antisemitic. The black female commissioners, including one of his one-time juniors,  Pillay SC, attacked him on the lack of racial transformation and the lack  of previously disadvantaged black advocates who juniored for him, disregarding his substantial history of foundational training of all types of young practitioners. The absurd proposition that an (acting) sitting judge of the Concourt is too junior to sit on that Court bench was accepted with undue legal gravitas.  The bullying of the Chief Justice causing him to admit evidence that had been agreed to be excluded, casts a concerning judicial shadow over the new Chief Justice.

That so many of the commissioners voted to exclude Judge Unterhalter from consideration seems judicially  inexplicable. That the Chief Justice allowed this to happen is even more inexplicable. Why is this generally well-liked and respected judge being denied a seat on the Concourt, a seat that even the Concourt judges want him to fill? How many other reasons can there be? That the newly introduced criteria were so openly disregarded is another iteration of the JSC’s previously unacceptable behaviour. What real reason could there be to  so summarily exclude Unterhalter from the process and thereby holding that he is not a fit and proper person to hold the position of Constitutional Court judge? This refusal to allow  the President from considering Unterhalter for appointment requires exceptional circumstances leading to his exclusion. In the absence of such circumstance, Unterhalter has been gravely vilified. From the interview, it is difficult to see what circumstances objectively existed justifying his exclusion.  The only thing that can be seen to  objectively exist was  that the standard applied to Acting Constitutional Justice Unterhalter was far more prejudicial and unfair than that applied to the other candidates.

The irregularities committed by the JSC, are little different  from  the one for which it has been called out previously in reported cases, of which they are no doubt acutely aware.  It also seems  very likely that  the JSC has violated section 174 of the Constitution and has  again  deliberately repeated its  irrational and unlawful conduct.   The JSC has again failed to apply the  standards expected of it. Unterhalter’s dignity has been seriously impugned by the removal of his name for submission to the President and his good name has been besmirched. Were he to decide to abandon any chance of a Concourt seat, he could follow the course of Judge Satchwell and litigate to enforce his rights. He is too much the gentleman and jurist to seek constitutional damages. Unfortunately, the same high legal  standards are noticeably absent in the JSC. The JSC needs to fully explain to the nation and its shocked legal fraternity just what exceptional circumstances it found to hold that this highly regarded acting Concourt judge is unfit and improper to assume a  permanent appointment.

About the writer:

Craig Snoyman is a practising advocate in South Africa.

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