OPINION

What’s the JSC got against David Unterhalter?

Jeremy Gordin |

07 April 2022

Jeremy Gordin on the extraordinary lengths the committee is going to to ensure the judge’s non-appointment to the ConCourt

Just to refresh our memories a little, the story so far runs something like this.

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

In plain English, questionable lawfulness and rationality meant that in April potential Concourt justices appearing before the JSC had been bullied, asked inappropriate questions, been forced to listen to bizarre interpolations, 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 of candidates were chosen by President Cyril Ramaphosa to fill two vacancies at the Concourt.

However, the main subject of this article – 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 start of February this year we were given the pleasure of witnessing 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, as someone remarked.

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Gauteng Judge President Dunstan Mlambo was accused of sexual harassment on the basis of completely anonymous rumours. Dali Mpofu SC insinuated that he had had a past sexual encounter with Judge Mandisa Maya – but then explained that this was merely a joke. Then the EFF’s Julius Malema, aided and abetted by Mpofu, climbed into then deputy-CJ Raymond Zondo. And so on and so forth.

But in March this year, President Cyril Ramaphosa appointed Zondo as the next CJ of the RSA with effect from 1 April 2022. 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 Mpofu SC and Griffiths Madonsela SC by Kameshni Pillay SC and Sesi Baloyi SC would help make the proceedings more, er, courteous.

Oops; 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. Well, that’s what its detractors and the pro-Unterhalter folk are saying – while those who didn’t vote for Unterhalter will say that the JSC members were just doing their job.

But I’m getting a little ahead of myself. The point is that on Wednesday this week Unterhalter SC was not short-listed for a job on the Concourt. As the JSC put it: “Unterhalter SC was excluded from nomination for appointment to the constitutional court by majority vote”.