Unterhalter’s appointment welcomed after years of snubbing

The fifth time proved to be the charm for Judge David Unterhalter, who finally received the green light from the Judicial Service Commission (JSC) for a position on the Supreme Court of Appeal (SCA).

This week, in his fifth appearance before the JSC since April 2021, Unterhalter, along with Judges Raylene Keightley and John Smith, earned a coveted recommendation for the higher court. He made it onto the list of candidates recommended to President Cyril Ramaphosa to fill three vacancies.

Previously, Unterhalter, a judge of the Gauteng High Court, had been turned down by the JSC four times in his bid for positions on the SCA and Constitutional Court.

Unterhalter, acclaimed as one of South Africa’s top legal talents, has finally secured the JSC’s nod for the appellate court. Insiders suggest that key to this success was the absence of commissioner Julius Malema, the leader of the Economic Freedom Fighters, at the SCA hearings, and Unterhalter’s display of humility, something which the commissioners see as crucial.

Throughout his past attempts, Unterhalter’s legal acumen was undisputed. His “white male privilege” and association with the South African Jewish Board of Deputies (SAJBD) appeared to be two of the major factors that worked against him during the interview process in April 2021.

He was also questioned about his record in appointing black women to his legal teams, and his failure to recuse himself from a case he had previously adjudicated while serving as an acting judge at the Constitutional Court. For these various reasons, among others that include what some might describe as “a general animosity towards him”, he wasn’t successful.

Unterhalter’s experience at the hearings has drawn widespread criticism of the JSC, not least from the Jewish community, and mired the body in controversy. Twice regarding interview rounds in which he and several candidates were grilled at length and relentlessly put through their paces, the JSC has been forced to re-run those interviews after non-governmental organisations took the body to court.

Some have suggested Unterhalter’s challenges arose during the controversial and “tumultuous” April 2021 JSC interviews for the Constitutional Court, when the South African Boycott, Divestment, Sanctions coalition tried everything to prevent him from being interviewed for the position, including attacking him for his association with the SAJBD. After this was brought to the JSC’s attention, Unterhalter was relentlessly grilled about his philanthropic involvement with the SAJBD during the COVID-19 pandemic, and his views on the Israeli-Palestinian conflict.

Milton Shain, a local antisemitism expert and emeritus professor of history at the University of Cape Town, said at the time it was “preposterous” to penalise someone for generously assisting a legitimate civic organisation in a democratic country. Shain said to identify involvement in a legitimate Jewish organisation which serves a specific minority that enjoys full constitutional rights as harmful to career prospects “reeks of antisemitism”, not least of all because this organisation also enjoys full constitutional rights.

After the April 2021 round of interviews for the Constitutional Court, the non-governmental organisation, CASAC (the Council for the Advancement of the South African Constitution) took the JSC to court on review for the deplorable way it ran that round of interviews. After a series of negotiations, the parties reached an out-of-court settlement: the JSC wouldn’t concede it was wrong, however, it would re-run the interviews for the Constitutional Court and re-invite all the candidates.

During his other interviews, Unterhalter has faced ugly and harsh criticism by members of the JSC for being “arrogant”, “subtly racist”, and “too clever”. This was highlighted in transcripts of confidential deliberations by the JSC after interviews last October to fill four vacancies in the SCA.

In spite of Unterhalter’s seniority, wealth of experience, and competence, he appeared to continue to face one setback after another, having been snubbed and rejected for top judicial posts time and again.

Insiders said it wasn’t just Unterhalter, but many other well qualified jurists had experienced this intense grilling during the interview process from the commissioners, and that the JSC needed urgent reformation.

The SCA interview round from 20 to 21 May this year was essentially a re-run of the October 2023 interview session. Then, the JSC interviewed 10 candidates, but bizarrely failed to recommend candidates for two vacancies on the appellate court.

The non-governmental organisation Freedom Under Law took the JSC to court over this issue. In an out-of-court settlement, the JSC agreed to re-run the interviews.

There since appears to have been a shift.

Retired judge, academic, and jurist, Dennis Davis, told the SA Jewish Report he was “delighted” with the choice of the three judges, and noticed that this week’s interviews were shorter and tighter and the list of candidates were “the best we’ve seen in a long time. This is encouraging and should be welcomed.

“The interviews were kept to the straight and narrow. It was the best list of potential candidates, and I was astounded that they managed to get through them,” Davis said. “Hopefully, this is the start of something. All three of the recommended candidates will make a significant contribution to the SCA, and will grace the court with great ability.”

Until his 2018 appointment as Gauteng High Court judge, Unterhalter had been one of South Africa’s leading silks (senior counsel). He had appeared in various high-profile cases which have landed up in the SCA and the Constitutional Court.

In addition to his legal practice, Unterhalter was also an academic. He was lecturer, senior lecturer, full professor, and visiting professor at several local and international universities.

Since his high court appointment, Unterhalter has written several important judgments. He also spent stints as an acting judge of the Competition Appeal Court from June 2018 to December 2021; the SCA, from June 2020 to Nov 2023; and the Constitutional Court, from January to May 2022.

Unterhalter, a former winner of the Professional Excellence Award at the Absa Jewish Achiever Awards, was born and raised in Johannesburg. He attained his Bachelor of Arts degree from the University of Cambridge; Bachelor of Laws from the University of the Witwatersrand; a Bachelor of Civil Law from the University of Oxford; and a Masters from Cambridge. In 1990, he was called to the Bar in South Africa, where he practised as an advocate for 27 years. He was appointed judge in November 2018.