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JSC interviews: Judge Unterhalter not recommended to Ramaphosa

Judge David Unterhalter Picture: Werner Beukes/SAPA

Judge David Unterhalter Picture: Werner Beukes/SAPA

Published Apr 6, 2022


Johannesburg - Renowned Judge David Unterhalter's wish of occupying a permanent seat in the Constitutional Court have been dashed.

This comes as his name has not made it to the shortlist, with only four candidates chosen by the Judicial Service Commission.

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Unterhalter – who has been a judge for four years and previously served as President Cyril Ramaphosa's counsel in the Marikana Commission of Inquiry – has been acting as a justice in the apex court since January this year.

Last year during the JSC interviews for the role of Chief Justice, Unterhalter received wide criticism from some Commissioners over the fact that he had never taken up a stint at the Concourt.

On Monday Unterhalter, who was nominated by advocate Tembeka Nicholas Ngcukaitobi SC, was once faced with tough questions as he joined yet another round of JSC interviews, this time aimed at filling the two remaining vacancies in the court.

Commissioner Jomo Nyambi asked: "As you came twice last year, sitting here today, what is it that is totally different to the judge we interviewed twice last year and what says we must seriously consider you this time around?"

Unterhalter replied: "Obviously, I have had the privilege of acting for a term in the constitutional court and since that's the court I aspire to sit in on a permanent basis, I think that has been a very very helpful experience both in understanding how the court works and engaging in the important work that it does. So I would say that is a relevant factor that is added to the things that I have already placed before the Commission in considering my position..."

But it was Commissioner Mvuso Notyesi's question on the recusal of judges that raised tensions in the room.

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Asking a question he had put to other candidates earlier, Notyesi probed Unterhalter on what should a judge do if he or she, in the Supreme Court of Appeal, dismisses an appeal and that same case came before them while they were serving in the ConCourt.

In his reply, Unterhalter indicated that the said judge would have to ultimately recuse him or herself.

Notyesi followed up on his question by bringing up two court orders where Unterhalter had dismissed a special leave to appeal.

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The judgments involved power utility Eskom and Mogale City on August 8, 2021.

An appeal was filed to the Concourt this year and was later dismissed by a full bench on which Unterhalter sat.

"That's a serious concern for me," said Notyesi.

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Unterhalter replied: "Having refused the petition in the Supreme Court of Appeal, I can only say that it was an error. I did not recall that I had sat on the petition."

He further added: "While, of course, I take responsibility for my failure to notice this, it appears to be an error that was made by everybody. It is regrettable, but I think there is little to be said about it except that it was a regrettable error as these things happen occasionally."

Meanwhile, those who have made it to the shortlist also faced challenging questions over their views on the work of the Concourt, as well as what contribution they would make in improving the work of the Concourt.

Earlier, Judge Owen Rogers was quizzed on the issue of transformation and what his views were on the demographic in the court.

Rogers said while the constitution requires that the judiciary reflect the demographics of SA, "the Concourt is too small and too important to have its appointments determined by quotas."

He emphasised that his view was that rather than solely focusing on that, the most vital component was to ensure that those who sit on the bench are capable.

Judge Fayeeza Kathree-Setiloane had also advocated for the JSC to appoint capable, strong and competent women during her session as she tackled issues of transformation.

President Ramaphosa will now be left with the responsibility of considering the JSC recommendations and making the appointments.

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Political Bureau