ConCourt candidate David Unterhalter faces unexpected grilling at JSC interviews
Interviews on Tuesday for two vacancies at the Constitutional Court were smooth sailing for four of the five candidates. The exception was Judge David Unterhalter, who was grilled about not recusing himself in a matter.
When asked whether a judge who sits in an application for leave to appeal and dismisses it should recuse him or herself when that case comes before the Constitutional Court, Unterhalter agreed.
Commissioner Mvuzo Notyesi then asked why Unterhalter had not done that when it came to a case he dismissed at the Supreme Court of Appeal (SCA), which was later taken to the Constitutional Court.
Unterhalter said that he wasn’t sure of the facts, but that once he was able to ascertain them, he “would happily respond”.
Chief Justice Raymond Zondo, the chairperson of the Judicial Service Commission (JSC), pointed out to the commission that Unterhalter had not been told that this matter would be raised in the interview.
But commissioner Julius Malema, who attended the interviews virtually, hit back and said that he had told the commission about it on Monday.
As to why Unterhalter wasn’t informed about this, Zondo noted: “Because [the complaint] came late, we said it wouldn’t be put to the candidate. The general rule is that if it comes late, it shouldn’t be accepted unless it falls into the exception category. Generally speaking, I don’t think a judge would intentionally sit in a matter that they know they shouldn’t sit on.”
Notyesi assured Unterhalter that it was not his intention to catch him out. “I just want clarity,” said the commissioner.
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Initially, the commissioners agreed to allow Unterhalter to give a response on Wednesday. However, commissioner Ronald Lamola pointed out that would delay their deliberations, which were meant to take place after the interviews.
The commission then decided to adjourn for 30 minutes to allow Unterhalter to access a laptop to allow him to answer the question posed by Notyesi.
After the adjournment, Unterhalter said the document provided to him indicated a petition served before the SCA and that he, with Ratanang Mocumie, sat on that petition.
Unterhalter said an application was then brought before the Constitutional Court by the disappointed applicant.
“In accordance with the procedure followed at the Constitutional Court, a memorandum was produced by Justice [Mbuyiseli] Madlanga in which he ...