What’s the JSC got against David Unterhalter?

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

In plain English, what happened in April was that potential Concourt justices had been bullied, asked inappropriate questions, 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 candidates were chosen by President Cyril Ramaphosa to fill two vacancies at the Concourt.

However, 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 begin of February this year, we witnessed 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.

However, in March this year, Ramaphosa appointed Justice Raymond Zondo as CJ, 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 certain firebrand commissioners, would help make proceedings more, er, courteous.

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.

On Wednesday last week “Unterhalter SC was excluded from nomination for appointment to the Constitutional Court by majority vote”. And so, 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. 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. This meant that the JSC needed to submit five names to Ramaphosa.

As it happens, only five candidates applied: Judge Fayeeza Kathree-Setiloane, Advocate Alan Dodson, Judge Mahube Molemela, Judge David Unterhalter, and Judge Owen Rogers. After the interviews held last Tuesday, the JSC deliberated and then announced that it had submitted only four names – Kathree-Setiloane, Dodson, Molemela, and 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 this also means is that the JSC has just clearly told Unterhalter not just that it thought there were better candidates, as before, but now also that he was a complete nonstarter; he need not bother to darken its 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 – and that to leave him off the shortlist just for the heck of it is simply outrageous.

Unterhalter’s major apparent 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 applicant’s leave to appeal to the Supreme Court of Appeal (SCA).

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

The issue was raised by commissioner Mvuzo Notyesi, an attorney, who apparently “found” copies of both rulings, and the Economic Freedom Fighter’s Julius 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.

Two 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. If you want to beat a dog, you’ll always find a stick.

The second is that a senior and very experienced law person told me that literally scores of such denied petitions come across judges’ desks and that it’s virtually impossible to remember them all.

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

Anyway, the JSC has found that Unterhalter is not “appropriately qualified” for the Concourt – a trifle odd, given that those who know say he was the number-one candidate in terms of constitutional expertise. The JSC has also found that Unterhalter isn’t an appropriate person for a Concourt post – yet he’s a high court judge and an acting member of the SCA and Concourt.

Why has this happened? Based on the above “evidence”, and on interviews with seven or eight “major players”, I’ll go with the following:

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

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

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

Three, Unterhalter is considered too clever. This attribute is frowned upon in circles where mediocrity is king. Jeremy Gauntlett and Geoff Budlender, 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 wants to go down that route – and Ramaphosa could kick the matter back to the JSC.

But I wouldn’t hold my breath waiting for Ramaphosa to do that. 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?

• Jeremy Gordin is a senior journalist who writes a column for Politicsweb and was author of ‘Zuma: a Biography’.
• This article, in its longer format, was first printed on politicsweb.co.za.