Judge David Unterhalter, who has interviewed at least four times for a permanent role in a superior court, again faced rigorous questioning by the Judicial Services Commission (JSC) for aligning with the decision of eight Constitutional Court justices to reject an attempted appeal without a hearing.
Unterhalter told the JSC that he believed his interview for the Constitutional Court last year was "not fair" and claimed he was "ambushed" by certain questions from some of the commissioners.
Unterhalter was interviewed by the JSC for a vacancy in the Supreme Court of Appeal (SCA) on Tuesday.
In April 2022, he came under fire for agreeing with a decision made by eight other Constitutional Court justices to dismiss an attempted appeal without hearing it – in a case, it has now emerged, he had previously refused leave to appeal on.
The judgment involved power utility Eskom and Mogale City on August 8, 2021.
Unterhalter said at the time, "Having refused the petition in the Supreme Court of Appeal, I can only say that it was an error. I did not recall that I had sat on the petition."
He further added: "While, of course, I take responsibility for my failure to notice this, it appears to be an error that was made by everybody. It is regrettable, but I think there is little to be said about it except that it was a regrettable error as these things happen occasionally."
However, on Tuesday, Unterhalter’s conduct in that situation dominated his interview.
JSC Commissioner Julius Malema asked Unterhalter what he would do if this kind of matter arose again. Unterhalter emphasised that he would consult with his colleagues before making a decision.
Unterhalter has been a judge for five years and previously served as President Cyril Ramaphosa's counsel in the Marikana Commission of Inquiry.
Until his 2018 appointment as judge of the high court in Gauteng David Unterhalter had been one of South Africa’s foremost silks, having appeared in various high-profile cases which have landed up in the Supreme Court of Appeal and the Constitutional Court.
The JSC have completed all its interviews for vacancies at the SCA and is expected to soon make an announcement on its recommended candidates.
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