David Unterhalter finally succeeds as JSC gives nod to three judges for Supreme Court of Appeal 

Judge David Unterhalter has been rejected by the Judicial Service Commission (JSC) on four occasions for ascension to the two highest courts in the land: the Supreme Court of Appeal and the Constitutional Court.

But this week, Unterhalter — widely regarded as one of the finest legal minds in South Africa — finally got his JSC nod for the appellate court. And all it took, seemingly, were two factors: the absence of commissioner Julius Malema from the SCA hearings and Unterhalter’s eventual capitulation in terms of eating some humble pie.

In his past appearances, Unterhalter’s legal chops have never been in question.

Instead, he has been grilled on white male privilege; his membership of the SA Jewish Board of Deputies; a dubious track record in briefing black women to act alongside him; and a failure to recuse himself from a matter he had previously ruled on at the SCA while acting at the Constitutional Court.

But perhaps more than any of these individual issues, what has previously hamstrung Unterhalter has been an unwillingness to take responsibility for personal shortcomings or blind spots. The JSC likes to see some humility on display; the body seems to demand it, particularly from white male candidates.

In Unterhalter’s last appearance before the commission, in October, he torpedoed his interview through his refusal to admit that he had erred on the recusal matter.

This time around, although there was a certain sense of teeth-gritting accompanying it, Unterhalter seemed more ready to give the JSC what it wanted.

Asked by commissioner China Dodovu whether anything had changed since his last interview, the judge cited the recusal issue and said: “I made an error. I would much have wanted not to have made that error… This is a learning process, and I’ve certainly learnt some things along the way.”

Hey presto: Judge David Unterhalter made it on to the JSC’s list of the three candidates recommended to President Cyril Ramaphosa to fill three SCA vacancies.

No Malema, no trouble

It would be hyperbolic to say that the absence of Malema from Monday’s proceedings clearly made itself felt in the nature of the list being sent to Ramaphosa, because the days when Malema seemed to wield extraordinary influence over the JSC — alongside fellow commissioner Dali Mpofu and a few others — are long gone.

Indeed, Malema’s interest in the JSC has seemed to wane in recent years. With the general election happening next week, his non-attendance at this round of SCA interviews was not unexpected. But even at previous sittings of the commission, his participation was far more limited than it was in the inglorious days of 2021 and 2022 when the JSC hit its dysfunctional nadir.

Absent Malema, and with some other commissioners seemingly much less engaged than normal, Monday’s interviews did, however, proceed with unusual speed and smoothness — even though some judges seemed to receive a less-than-thorough hearing.

The JSC took barely 45 minutes to question the final candidate of the day, Judge Leonie Windell, for example.

Judge questioned over Zuma case recusal

The only candidate who seemed to receive a thorough grilling was Judge Piet Koen of the KwaZulu-Natal High Court, who has had a torrid run at the JSC in recent years.

Most infamously, in the April 2021 set of interviews, Koen was accused by the then Chief Justice, Mogoeng Mogoeng, of extraordinary rudeness in a session held by Mogoeng for KZN judges. It subsequently emerged that Mogoeng had been thinking of another judge. More than 80 advocates from the province released a statement defending Koen, but the damage had been done.

On this occasion, the critique directed at Koen was more substantive. Commissioner Carol Steinberg expressed concern that Koen had recused himself as the judge in former president Jacob Zuma’s corruption trial in January 2023. Koen said at the time that this was to avoid the perception of bias because he had already expressed “strong views” on a different aspect of the case.

Steinberg, subsequently echoed by commissioner Tembeka Ngcukaitobi, suggested that Koen had a duty to sit in the matter and that his grounds for recusal were flimsy.

In addition, said Steinberg, the recusal “of course set back the timelines [on the case] quite significantly again” — in other words, playing into Zuma’s Stalingrad strategy.

Koen denied that his move had delayed matters, saying that appeal processes were still ongoing and the trial could not proceed in any event.

Chief Justice Raymond Zondo also weighed in, remarking to Koen: “A judge shouldn’t just recuse himself because there are some reservations.”

Koen responded: “I can assure you that I agonised over this issue for quite some time.”

Judges Keightley and Smith join Unterhalter

Ultimately, the JSC resolved to add the names of Judge Raylene Keightley of the Gauteng High Court and Judge John Smith of the Eastern Cape High Court to the list of SCA nominees.

Keightley, who has a background spanning academia, civil society and work as a State advocate, gave arguably the most impressive interview of the day — with sharp, comprehensive answers throughout.

Smith will become one of the few permanent coloured judges in the highest courts: a fact which may be salient to mention because numerous commentators on social media appear to be labouring under the misapprehension that all three nominated candidates are white.

On Tuesday, the JSC will hear from the sole candidate to be interviewed for the most important judicial post in the land. Deputy Chief Justice Mandisa Maya, Ramaphosa’s sole nominee for the next Chief Justice, is expected to have a relatively easy ride. DM