Unterhalter weighs up his new role as judge

JORDAN MOSHE

“I was delighted by the opportunity but also full of trepidation over the change it would involve.

“It is the role of an advocate to present a case and his client, while a judge’s role is to be fair at all times, exercise balanced judgment and reach the best possible decision. This role carries enormous responsibility.”

Unterhalter and 14 other legal practitioners were appointed as judges on November 2 by President Jacob Zuma. He has practised as an advocate for the past 27 years.

During this time, Unterhalter has represented Deputy President Cyril Ramaphosa at the Marikana Commission and the SA Jewish Board of Deputies in a hate speech case involving a Muslim radio station’s anti-Zionist broadcast. He also appeared for the Helen Suzman Foundation when businessman Hugh Glenister tried to get the Hawks permanently separated from the South African Police Service to ensure its independence. These are just a few out of hundreds of high-profile cases in which he has appeared, grappling with fundamental issues such as the right to freedom of expression and constitutional challenges.

Unterhalter was inspired by his father, Jack, who represented a number of apartheid-era political prisoners facing the death sentence. “My father devoted himself to representing the victims of apartheid. He set up a model for me that saw the law as an instrument of justice, not merely as a way to earn a wage. There was never any pressure placed on me to become a lawyer, but he certainly served as an inspiration to me.”

Born and raised in Johannesburg, Unterhalter attained his BA degree from the University of Cambridge, an LLB from the University of the Witwatersrand, a Bachelor of Civil Law from the University of Oxford and an MA from Cambridge. In 1990, he was called to the Bar in South Africa, where he practised as an advocate for 27 years.

Before the court vacancy came up, Unterhalter had been contemplating becoming a judge for a few years. “I’d been an acting judge on a few occasions, and I contemplated putting my name forward for such a position a number of times. The vacancy was announced in June, and a fair number of candidates threw their hats into the ring. I decided to do the same.”

He has taken up his new post with a sense of purpose. “The judiciary plays a vital role in cementing the democracy of South Africa. I now have the unique opportunity to contribute to this role, but I am mindful of the importance of shifting my professional focus from that of an advocate to that of judge. Not all legal practitioners are suited for judicial life. Some make better attorneys or advocates. Self-assessment is always crucial, and time will tell if I am truly suitable for this position.”

His new role will involve changes in terms of his personal time and way of life. “When you’re at the Bar, you have little time for other pursuits. Although judging cases is time-consuming, it is also fairly structured and orderly, making time more manageable. I will now be able to pursue other areas of interest.”

However, he adds: “The role of a judge is one of marked solitude, but it gives me a chance to render a public service in a way I could not as an advocate. This new way of life will also give me time for reflection, and I look forward to it.”

Like the mixed emotion he experienced on being appointed, Unterhalter feels eager yet apprehensive about the road ahead. “The position of judge will give me an opportunity to experience satisfaction at resolving disputes and having people go away with a feeling that the legal system has served them. I will be able to contribute to the development of South African law and the ongoing democratic experiment.”

However, he adds: “I’m fearful that I may come to think of my job as routine, with the same processes being followed every day. A role like this needs to be invested with a sense of value and novelty constantly, and an overall absorbing interest must always be present.”

Unterhalter feels no anxieties about being a white and Jewish member of the judiciary in contemporary South Africa. He says the judiciary function is not one in which attributes such as white and Jewish are relevant, and neither has any bearing on his role.

“Being white is not a part of my identity. Judaism, however, is truly a part of who I am. It offers a rich tradition from which concepts of justice stem and which are exemplified in the field of law. Although it has no direct impact on my legal decisions, Judaism offers tenets which inform the values of justice.”

While he is not the first Jewish practitioner to be appointed to the judiciary, Unterhalter admits that the politics of the judiciary are complex, though not for religious reasons. “Under apartheid, talented Jewish lawyers were not often asked to serve, or they declined offers to do so. There were therefore fewer Jewish judges. Under democracy, there are more Jews involved, but few Jewish lawyers are offering themselves for judicial service and most would rather not want to spend their time on the matters it deals with.”

Unterhalter is proud of South Africa’s legal system. “Our legal system is in a robust state of health. The independence of the judiciary is proven by the fact that it upholds the Constitution and democratic order. The legal professions are peopled by talented individuals, and while we haven’t solved a number of problems surrounding access to justice, the legal institutions are doing well overall.”