Vendetta against judge Unterhalter harms the apex court

There is no debate: the most recent sitting of the Judicial Service Commission (JSC) was far more dignified than a year ago. But the bar was set low. Hopefully, the latest round of interviews shows the JSC is taking steps in the right direction. If so, this bodes well not only for chief justice Raymond Zondo, who will chair it for the next couple of years, but also the judiciary at large. There is no doubt that the commission, which advises the government on the administration of justice and interviews candidates for judicial posts, needs jacking up.

Once again, the country was exposed to the weakness that comes with the involvement of politicians who seem determined to use the JSC to further their own agenda. Their absence would definitely enhance its maturity and credibility.

Last Tuesday was a reckoning, with five candidates for two seats on the constitutional court. In the end, only four of the five received the JSC stamp of approval.

President Cyril Ramaphosa must now decide between Alan Dodson, Fayeeza Kathree-Setiloane, Mahube Molemela and Owen Rogers. Because of the JSC’s decision to cull one candidate, he can fill only one of two vacancies on the bench. This is because of a provision in the constitution that the JSC has to recommend three names more than the number of available positions.

There are those in legal circles who, on learning that David Unterhalter’s name was scratched off, sounded the alarm about the wellbeing of the judiciary. One cannot say that this alone sounds the death knell for rule of law in SA, but it is a great loss, and it does appear that in Unterhalter’s case, certain commissioners were determined to sink his chances of appointment and threw enough mud for something to finally stick.

For all his shortcomings, legal and personal, great and small, Unterhalter’s significant legal acumen will be lost to the apex court, jurisprudence-setting precedent, and the country at large. If anything, he has proved his ability to remain level-headed in the face of malicious questioning. He kept his cool when an obvious plot to trip him up kicked into gear.

Certain weaknesses were plain after his April 2022 interview, including apparent defects in his briefing patterns and a mistake in connection with an appeal bid. The latter was easily the “gotcha” moment for the prospective Constitutional Court judge, which commissioner Mvuzo Notyesi built up to throughout the day. When he brought it up with Unterhalter, he enjoyed the forceful backing of EFF leader Julius Malema. It is debatable, however, if that error can be elevated to the level of valid disqualification.

With the public at a loss as to the reasons for the JSC’s exclusion of Unterhalter, speculation is rife. One can only imagine what the commissioners debated and discussed. A source with insight into the talks said bluntly there was “blood on the floor” by Tuesday night.

And we do not know how much of a role politics may have played. Chris Oxtoby of the University of Cape Town’s Democratic Governance and Rights Unit has suggested Unterhalter may have been cut because some saw him as “the president’s lawyer” after he represented Ramaphosa at the Marikana commission.

A 2013 change in the law means the apex court hears a far broader range of cases outside strictly (or overtly) constitutional matters. There is greater demand for a range of legal skill. Unterhalter’s contribution, particularly on competition law, would have been invaluable. He may well be enticed by opportunity abroad.

Until the JSC runs another round of interviews, SA’s judiciary will remain unstable at the very top. The commission’s latest act of folly means the problems caused by a growing caseload and not enough judges will persist.

This situation could have been avoided had the JSC sent five names to the president after interviews last week. Without a fully constituted bench, it is not possible to anchor the “hive brain” of the top court, and building institutional memory takes time.

UNTERHALTER’S SIGNIFICANT LEGAL ACUMEN WILL BE LOST TO THE APEX COURT