After two days of interviews, the Judicial Service Commission (JSC) announced that judges Fayeeza Kathree-Setiloane and Shane Kgoele would be recommended to President Cyril Ramaphosa for permanent appointment to the Supreme Court of Appeal (SCA).
Judge David Unterhalter, revered among many in legal circles, will not be recommended despite two remaining vacancies at the SCA. It was Unterhalter’s fifth rejection by the JSC to an appellate bench, after applying for the Constitutional Court and the SCA.
Unterhalter’s interview on Tuesday evening, however, was not without incident. The last judge to be interviewed for the SCA, he told the JSC a recent allegation that he tried to obtain a bribe was unfounded and was the result of his email being hacked.
He explained that an objection had been lodged against him earlier this year. The person who lodged the objection had lost a case before Unterhalter when he was sitting in the Johannesburg high court. The complainant had received an email labelled “payment advise [sic]” from Unterhalter’s email address requesting payment of fees. Unterhalter was informed by many others, including fellow judges and friends, about receiving the same strange email. He informed the Office of the Chief Justice when it was discovered his email had been hacked. So the complaint was unfounded, he said, because it was the same email everyone else had received, which he had not written. He never sought a bribe, he said.
The JSC’s complaints body has yet to comment on the issue. However, it was not taken further by the JSC.
The JSC also raised concerns Unterhalter had adjudicated a case in the Constitutional Court that had been before him while he was still acting at the SCA. Unterhalter pointed out that when this concern was raised last year, he had been “ambushed”, since he was not informed beforehand. “This body took me by surprise,” he said.
Having had time to “reflect”, Unterhalter said, the question as to whether he had to recuse himself was “complex” and not a simple matter of being obviously wrong.
Despite these concerns, the JSC praised Unterhalter’s vast experience as a senior advocate and his judgments from acting stints in the SCA and the Constitutional Court. He was a member of the appellate body of the World Trade Organisation until 2013 and had served as its chair for some time. He was a law professor at Wits University until 2000.
However, he was not selected by the JSC for the SCA bench.
Kathree-Setiloane’s and Kgoele’s names will be sent to Ramaphosa to make the final decision on their permanent appointments.
On Wednesday, the JSC will hear from candidates for the labour court and labour appeal court.
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