Judge Unterhalter called ‘arrogant’, ‘subtly racist’

EFF leader Julius Malema accused Gauteng high court judge David Unterhalter of "subtle racism" while ANC legislator Thamsanqa Dodovu described him as arrogant with a "sense of entitlement".

This is revealed in a redacted transcript of confidential  deliberations by the Judicial Service Commission (JSC) after interviews last October to fill four vacancies in the Supreme Court of Appeal (SCA). The transcript was filed this week in the Pretoria high court as part of the litigation between Freedom Under Law (FUL) and the JSC.

FUL challenged the JSC’s decision to fill only two of four vacancies after interviewing 10 candidates and overlooking some who were widely viewed as eminently appointable, including Unterhalter.

The JSC’s announcement after the interviews in October was met with dismay in the legal community — prompting the legal action from FUL.

One of the orders FUL asked for was an urgent one that the JSC reconvene its October meeting and “consider whether the remaining candidates are fit for appointment”. It did not challenge the two appointments that have already been made.

The transcript of the normally confidential deliberations — though partially redacted — reveals that SCA deputy president Xola Petse had earlier consulted the most senior judges at the SCA and recommended to the commission four choices. But only one of these, Fayeeza Kathree-Setiloane, was given the nod by the JSC.

The other three, Unterhalter, Gauteng High Court judge Thina Siwendu and Eastern Cape High Court judge John Smith, did not secure enough votes. The second judge ultimately chosen by the JSC, Shane Kgoele of the Gauteng division, was not on Petse’s list.

Petse’s recommendations followed an exhortation to commissioners on the needs of the SCA.  He said South Africa’s second highest court “desperately needs what I would call heavy lifters, lawyers of substance”. The senior judges in the court were battling under the pressure and had reached a point where it had become “exceedingly onerous for them to hold the hand of the least experienced judges”.

We have many, many judges who are terribly arrogant who are on the bench but that is not a disqualifying factor

—  Sesi Baloyi SC

He said — “within the confines of this room” — there was a “crisis looming”.

“Unless drastic steps are taken … it might have a negative effect on the performance of the SCA, to the detriment of litigants,” he said.

Based on his consultations with SCA president Mahube Molemela and other senior justices, he listed his choices. But for the remainder of the transcript — at least that part not redacted — not much of the JSC’s attention was paid to Smith and Siwendu. Much of it focused on Unterhalter (and JSC commissioners motivating for why Kgoele should get the nod, even though she was not one of Petse’s choices).

Justice minister Ronald Lamola, who took part in the discussions as a JSC member, said he supported Petse’s list but had reservations about Unterhalter as he “tried to be too clever when it was not necessary”. IFP MP Narend Singh said while Unterhalter was “a great jurist”, he did “not get the impression in the way that he [Unterhalter] answered today that he’s a team player”.

Dodovu, a member of the National Council of Provinces, said that while he approved of the other three candidates Petse had mentioned, “Unterhalter has got this sense of entitlement and importance”.

“We must deal with this arrogance, and it is on this basis that I will not support his candidature,” he said.

Malema said he would “never succumb to subtle racism that masquerades itself as being intelligent. I don’t agree with the minister that he was trying to be clever with us. He was being himself. A person who looks down at very senior judges because they are of a different colour.”

The transcript reveals that senior counsel Sesi Baloyi said the commission needed “to be mindful that humility and arrogance were not a criteria”.

“In fact, we have many, many judges who are terribly arrogant who are on the bench but that is not a disqualifying factor … Yes, maybe if he had read the room better, he would have been more minded to be more modest,” she said. But it would not “withstand scrutiny” if this was a disqualifying criteria, she said. In any event, it did not outweigh the other factors listed by Petse.

Tembeka Ngcukaitobi SC said there was “zero” basis for saying Unterhalter was not a team player and his colleagues “actually praise him for his collegiality”. There was also no basis for the criticism that he had a sense of entitlement, importance or racism, he said. He added that none of these allegations had been put to Unterhalter in his interview.

“These are very, very serious charges. And if they are to be taken into account without a factual basis and without them being put to him, then this body would be acting irrationally.”

While Unterhalter may have flaws, the JSC was not “here to punish judges. I am here to appoint judges and I am here to look at what the country needs in terms of a strong judiciary and I have to respond to what the deputy president is saying,” Ngcukaitobi said.

The transcript also revealed that after a first round of voting Kathree-Setiloane, Smith, Unterhalter, Siwendu and Kgoele all got enough votes to get the nod. But there were only four vacancies. In a second, tiebreaker round, only Kathree-Setiloane and Kgoele got enough votes.