With his aristocratic air, Gauteng High Court judge David Unterhalter can in some eyes resemble a star-bellied Sneetch out of Dr Seuss.
In the Seuss story, Sneetches who have green stars on their bellies look down their noses at those who don't.
It is a perception about Unterhalter that members of the Judicial Service Commission (JSC) have previously allowed themselves to become riled about. But when they interviewed him earlier this month for a permanent position at the Constitutional Court, they had more pressing matters to address.
These included his record on transformation; particularly the paucity of black female juniors he had led as an advocate litigating cases crucial to the development of post-apartheid jurisprudence.
This may have contributed to his surprise exclusion from the list of names the commission submitted to President Cyril Ramaphosa. But many media reports have focused on the questions put to Unterhalter by commissioners Mvuzo Notyesi, an attorney, and Julius Malema, leader of the EFF, to suggest that the JSC has a beef with him.
Notyesi and Malema raised a matter in which Unterhalter conceded he had demonstrated “human error” — in his current post as acting judge of the Constitutional Court, he had failed to recuse himself from a leave-to-appeal application despite having previously dismissed the same application while he was sitting on the Supreme Court of Appeal.
In focusing almost solely on that interaction between Notyesi, Malema and Unterhalter, sections of the media demonstrated their own pro-white bias and illuminated the woeful lack of transformation in the industry.
The shrill media accusations that the JSC has animus — a “vendetta”, as one daily recently described it — against Unterhalter ignored the rigorous and analytical questioning by two recent additions to the JSC, both senior counsel.
Sesi Baloyi and Kameshni Pillay have made the body demonstrably smarter, sharper and more nuanced in how it deals with matters of racial and gender transformation on the bench.
I can take the point that you make that looking at this list the black women on the list are very junior, I’m not sure that I accept the criticism that that is somehow a problem
— Judge David Unterhalter
During a previous interview with the JSC, Unterhalter claimed a commitment to transformation based on the many “black and female” junior counsel he had led.
He breezily mentioned, among others, Baloyi and Gcina Malindi, now a judge of the high court in Gauteng, as people he had led.
The JSC interviews this month were the first to include Baloyi, who replaced Griffiths Madonsela as one of the four presidential appointees.
Before the interviews began, the JSC, on behalf of the new commissioner, wrote to Unterhalter and asked him to clarify whether she was the junior to whom he had previously referred.
Unterhalter acknowledged he had been mistaken. In the ensuing interview, he said Baloyi had represented a co-respondent in a matter before the Competition Commission: “We were effectively on the same side, but I was not leading her,” Unterhalter said.
He produced a list of 39 advocates who he had led in the 350 or so cases he had litigated that had resulted in reportable judgments. Unterhalter described the list as “not trivial” and stated he had sought to work with “women practitioners and black practitioners”.
Pillay followed up with questions that reflected concerns that a male commissioner might not have raised. After a “rough calculation”, she noted that of the women on Unterhalter’s list, only seven were black. Unterhalter disputed this, claiming there were eight.
Pillay noted Unterhalter’s vaunted position in the legal profession over a career spanning several decades, the amount of work he received at the bar and his “demand in the market” as one of the country’s most sought-after silks.
“In that context, and with that kind of power that you wield, you literally put up a list of seven or eight black women?” Pillay asked. She said that of those, up to three may have been serving their pupillage at the time and there was “a cause for concern that there are no senior black women”.
Unterhalter appeared flustered. He started to stammer.
“I can take the point that you make that looking at this list the black women on the list are very junior,” he replied. “I’m not sure that I accept the criticism that that is somehow a problem. Seems to me that it is much, much more important to give opportunities to those who are starting out, and who are junior, to participate in cases.”
Unterhalter suggested that most senior black women at the bar “have more opportunities by dint of their seniority and the fact that they are established”.
“I’m not certain at all that the criticism is a fair one, in that one would have thought that some credit would be given to the fact that bringing more junior black women into cases of some importance could actually give people opportunities that they could benefit from,” he said.
Pillay then asked: “Where you have worked with black women, it was on the basis of you extending opportunities?”
Unterhalter: “I think that was certainly the result.”
Pillay: “The logical consequence of that is that you haven’t worked with a black woman junior where you depend [on] and you trust that junior to work with you on the matter.”
Unterhalter refused to accept that proposition, and talked about the “extraordinarily nonhierarchical” manner in which he worked.
The logical consequence of that is that you haven’t worked with a black woman junior where you depend [on] and you trust that junior to work with you on the matter
— Advocate Kameshni Pillay
Later in the interview Baloyi picked up where Pillay had left off.
According to her calculations, the names of black female juniors on the list indicated that most, aside from Nasreen Rajab-Budlender, had only worked with Unterhalter in his final few years at the bar; the inference being that he may have taken them on with one eye on an appointment to the judiciary.
The JSC often asks silks about the number of female black juniors they have led.
Once more, Unterhalter stammered and stuttered.
Baloyi remarked that she was “just making the simple point” that Unterhalter had started working with black female juniors “at the tail end of your career at the bar”.
Unterhalter said he would go back to the law reports to see who “exactly” he had enlisted as juniors and when, but the damage had been done.
These exchanges are significant since black junior counsel often complain about being given inconsequential briefs by white advocates who merely want to tick the transformation box to boost their eligibility for senior counsel status.
The inference that Unterhalter himself had been guilty of this tactic while angling for a judicial post hung over his interview.
What was also clear was that the JSC's black female lawyers exhibited the kind of analytical rigour and excellence in questioning Unterhalter that would have served him well as a lawyer.
They contributed to the JSC decision that the star on his belly was not enough to win him the nomination he sought.
• Niren Tolsi is freelance journalist who has been writing about the JSC since 2010
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