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Judge David N Unterhalter

Capacity: Judge
First appointed as judge: January 2018 (Gauteng, Johannesburg)
Gender: Male
Ethnicity: White
Date of Birth: November 1958
Qualifications: BA (Cambridge, UK) LLB (Wits) BCL (Oxford, UK) MA (Cambridge, UK)

Key judgments:

Candidate bio: 

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.

Some of the matters included President of the Republic of South Africa v Masethla, which dealt with a constitutional challenge to classified documents; Eisenberg v Minister of Home Affairs, regarding the constitutionality of immigration regulations and Islamic Unity Convention v Minister of Telecommunications which grappled with hate speech and the right to freedom of expression.

Since his appointment to the high court Unterhalter has also spent stints acting at the Competition Appeal Court (Jun 2018 – Dec 2021), the Supreme Court of Appeal (June 2020 – Nov 2021) and, most recently at the Constitutional Court (Jan – May 2022)

When Premier Soccer League (PSL) club Ajax Cape Town sought out the courts to field footballer Tendai Ndoro, who would then have played, — contrary to FIFA rules — for his third club in a 2017-18 season, Unterhalter adjudicated the matter on an urgent basis in 2018.

Before the case had landed in the courts Ajax and Ndoro had successfully challenged the PSL’s stance to disallow the player’s participation at its Despite Resolution Committee (DRC). The DRC’s decision was, however, then successfully challenged by the league at a South African Football Association (Safa) arbitration tribunal which allowed his registration for Ajax but prohibited his participation in matches.

Ndoro and Ajax had approached the high court seeking a decision under the common law as a private power exercised by a voluntary association, alternatively under the Promotion of Administrative Justice Act (PAJA), alternatively under the principle of legality. They expressly disavowed any reliance upon a review in terms of s 33 of the Arbitration Act.

Safa and the PSL had argued that the arbitration was a private arbitration, and that without reliance on the Arbitration Act, the applicant’s case must fail.

Among the issues Unterhalter grappled with was the question of whether private entities which exercised public powers without statutory authority were subject to PAJA.

Unterhalter found that FIFA, SAFA and the PSL constituted an “institutional framework”, and whilst each entity was a private organisation, with relationships with their members founded on contract, it was “hard to escape the conclusion that what these bodies do and the objects they strive after are public in nature.”

Noting that SAFA and FIFA considered themselves as “private associations that regulate football [and] exercise public functions because they oversee a public good, and do not simply regulate private interests” Unterhalter found that: “FIFA, SAF and the NSL, though private associations, enjoy regulatory powers that discharge public functions. And when they do so, their actions amount to administrative action undertaken by juristic persons in terms of the empowering provisions of their statutes and regulations. This renders such actions open to scrutiny by way of judicial review under PAJA.”

He also found that the tribunal was an “appellate dispute settlement body forming part of the regulatory scheme to enforce the rules of that scheme. The fundamental features of private arbitration are lacking.”

Thus, the arbitrator’s decision constituted administrative action and was susceptible to review under PAJA. However, the arbitrator had correctly found that the DRC had lacked jurisdiction over the complaint.

The application was dismissed with the judgement handed down on the day of the hearing.

Unterhalter has demonstrated an ability to quickly turn around well-written and clear judgments — and has done so with independent-mindedness. In the Commercial Law matter of Potgieter v Olivier and Another he heard the matter on 13 October 2014 and handed it down three days later.

The plaintiff had sold his property to the defendants in terms of a written agreement for R1-million. This was payable either in cash or by payments of R10 000 per month. The issue was whether the agreement of sale was void on the basis that the agreement of sale was a credit transaction in term of section 8(4)(f) of the National Credit Act and that the plaintiff was obliged, as a credit provider, to register in terms of section 40(1)(b) of the Credit Act.

Unterhalter found that the agreement of sale included a deferral of payment which permitted “the purchasers to discharge the purchase price by way of monthly instalments over a lengthy period, as an alternative to the payment of cash on registration of title. This constitutes a deferral of the payment of the purchase price. It is this deferral of payment that then attracts the concomitant obligation to pay interest. These seem to me to be the hallmarks of the grant of credit, as defined in the Credit Act.”

He noted that he was bound by the legal precedent in Friend v Sendal  where a full Bench of the high court found that the respondent is not a credit provider as defined in the Credit Act but did not give reasons for this finding.

“As the concluding sentence of paragraph 15 [of the Friend judgment] makes plain, those reasons are to be found in what follows. And what follows is the Court’s interpretation of Section 40(1)(b) and the application of that interpretation to the position of the Respondent… It follows that the interpretation of Section 40(1)(b) constitutes the ratio of the decision and is binding upon me.

He went on to add that, “if Friend were not binding upon me, I should be disinclined to follow it. In Natal Joint Municipal Pension Fund v Endumeni Municipality… the Supreme Court of Appeal has provided an exposition of the principles of interpretation. It is a unitary exercise that requires the consideration of text, context and purpose.”

“That the principal debt is expressed by reference to “outstanding credit agreements” is not an indication that a single credit agreement is not implicated in the legislative language,” Unterhalter found.

The declaratory relief sought was dismissed and the plaintiff’s remaining claims and the defendants counterclaim postponed for an indefinite period.

Unterhalter was a member of the Helen Suzman Foundation, which has taken government, and the JSC, to court over administrative law issues — he has usually led the FUL legal team in these cases.

One area that became a concern for the Judicial Service Commission during his April and October 2021 interviews was that Unterhalter was appointed an executive member of the South African Jewish Board of Deputies in 2020. This issue was particularly topical considering the furore at the time surrounding comments made by Chief Justice Mogoeng concerning the conflict in Palestine/Israel.

The SAJBD is considered, kindly, as an arch-conservative organisation that has supported the Zionist state’s often brutal and deadly treatment of the Palestinian people. Unterhalter resigned in March 2021 (weeks before the interview), but this only flamed the fans of suspicion. The Black Lawyers Association raised an objection to his candidacy on this ground. Commissioner Griffiths Madonsela SC probed Unterhalter intensely on it, particularly on whether the SAJBD’s Zionist stance could be reconciled with the values of the Constitution. An article in the General Bar Council’s Advocate journal penned by Franny Rabkin subsequent to the interviews noted that Unterhalter was not frank on the SAJBD’s pro-Zionist stance and puts this as a possible reason why Underthalter was unsuccessful in that round.

Unterhalter holds a BA from the University of Cambridge, an LLB from the University of Witwatersrand, a Bachelor of Civil Law from University of Oxford, and an MA from Cambridge.

The son of renowned lawyer Jack Unterhalter, who represented many political prisoners facing the death sentence during apartheid, David has worked as both an academic and lawyer during his career.

He has lectured and held positions at all his alma maters and was also visiting professor at the Columbia Law School in New York. Between 2006-2013 he was a member of the appellate body of the World Trade Organisation and served as its chairperson over a period. He was director of the Centre for Applied Legal Studies while a professor of law at the University of Witwatersrand from 1997-2000.

Some of his academic papers include Professional Privilege and the Proof of Innocence, which argued that privilege was not a fundamental right and Equal Protection and Interpretative Deference Under the Constitution, which was published in 1993, before South Africa adopted its Constitution.

Unterhalter was a member of the then-Democratic Party (now Democratic Alliance) from 1989-1994.

Asked in his JSC application form what his most significant contribution to the law and the pursuit of justice has been, Unterhalter notes that he has:

“…[C]ontributed to legal education, at universities and by way of advocacy training, to assist in making the next generation of South African lawyers better still than the last. I sought, in my practice…to promote the advancement of black and women advocates in the profession. As a judge, I have worked with my colleagues to re-introduce the Commercial Court in the Gauteng Division so as to promote the use of the courts in significant commercial disputes and thereby augment our commercial law.”

April 2022 JSC Interviews:

October 2021 JSC Interviews:

Interview of Judge D N Unterhalter by the JSC, October 2021, for a position on the Constitutional Court

Judge Unterhalter’s application was unsuccessful. He was not nominated for appointment.

April 2021 JSC Interview: 

April 2021 Interview Synopsis: 

Of all the candidates vying for positions on the country’s apex court, Gauteng High Court Judge David Unterhalter rocked up with the most well-thumbed copy of the Constitution, with several stick-its peeping out of bookmarked sections.

This — or the fact that he is one of the country’s sharpest legal minds — didn’t translate into his recommendation for a position at the Constitutional Court, however.

His white male privilege (which he was asked about and he conceded to with grace and thoughtfulness) and the fact that he had spent a short time as a member of the Jewish Board of Deputies (which he resigned from in the lead-up to his interview) appeared to be two of the major factors that worked against him.

When asked about his membership of, and subsequent resignation from, the Board, which often takes a pro-Zionist position , Unterhalter said he had joined at their invitation during the pandemic lock-down last year.

He said he considered it a “community welfare organisation” that had been founded to fight anti-semitism and “not to promote Zionism”. According to Unterhalter, he took the invitation as an opportunity to assist in welfare issues affecting the “diverse” Jewish community  during lock-down.

The objection to his membership raised by the Black Lawyers’ Association had, according to Unterhalter, made him reconsider his membership because he realised that the board may be involved in litigation on hate speech and anti-Semitism issues.

He said while the BLA concerns were different to his — the organisation had raised issues about his affiliation to a body perceived as being virulently Zionist — it had made him realise that “perceptions sometimes matter”.

Professor Engela Schlemmer has asked all candidates about the deteriorating “depth and scholarship” in judgments. In his response Unterhalter pointed out that “almost every court is under huge pressure” to hear cases and deliver timeous judgments and that deep research should be taken on a case-by-case basis with regard to the “novelty” of the matter before judges.

He said all judgments “must be effective, well-reasoned and must speak to the parties and the arguments they put forward… We still produce those judgments, the question is do we produce enough of them?”

Unterhalter said it was “indisputable that I have privilege” but the question to answer was what was to be done with that privilege: “Do you give back… or luxuriate in your privilege? I take the former position.”

He was later pressed on his privilege and whether the JSC should rather appoint someone who had overcome adversity and discrimination to get to the point where they were in contention for a place at the Constitutional Court by Advocate Dali Mpofu SC.

Unterhalter said it was up to the commission to consider the “different attributes” that that the various candidates possessed and then decide how those “talents could be best applied to the strengthening of the institution, the Constitutional Court. At the end of the day, it is about public service.”

The commission  has often approached the Constitutional injunction that the judiciary “reflect broadly the racial and gender composition of South Africa” in the appointment of judges as a box-ticking exercise.

The take-away from Unterhalter’s interview was that when it suits the commission — the Constitutional Court has no white judges for the first time in its history — the concept of diverse representation of a diverse population is much less urgent. This is not necessarily a deeply troubling approach unless diversity is under threat of being subsumed by a narrow and reductive nationalist Africanism.

October 2017 Interview:

October 2017 – Interview synopsis:

The Judicial Service Commission (JSC) can be schizophrenic when dealing with smart, but smooth, white male lawyers whose privilege is obvious in their success.

Sometimes commissioners attack rigorously — occasionally viscously — the candidate’s perceived subliminal racism, sexism and superiority complexes. At others, they appear slightly cowed by the candidate’s track-record.

Aside from Chief Justice Mogoeng Mogoeng’s inexplicable attack on Freedom Under Law — which Unterhalter has represented in court — and South African non-governmental organisations (NGOs) in general, nobody got really stuck into Unterhalter.

Seemingly oblivious to the work that NGOs and public interest law firms have done — many of which, from social movements like Abahlali baseMjondolo to legal organisations like the Socio-Economic Rights Institute, have ended up before Mogoeng at the Constitutional Court — the chief justice embarked on an untrammelled attack of South Africa’s civil society for a perceived anti-government myopia.

Mogoeng said he had “a sense that NGOs show their hand when there is something to challenge about how the country is run, but hardly ever [when it came to] cases of racism, employment equity” and “land redistribution”.

During the course of a relentless period of interruptions and further questions by Mogoeng — more “Honey-badgering” than badgering — Unterhalter remained cool. He maintained South Africa had a “vibrant civil society” where the “particular focus” of the work each NGO did meant they “concentrated on particular issues to the exclusion of others”. As an example, Unterhalter reminded Mogoeng about the “significant work around land” that the Legal Resources Centre was doing.

Perhaps a letter of support from top advocate Tembeka Ngcukaitobi blunted the commission’s attempt to interrogate Unterhalter’s contribution to transformation. He appeared to be let off relatively easy on questions about the number of black and female juniors he had included in his teams.

Advocate Dali Mpofu SC asked Unterhalter about his transformation record as a practising lawyer and in his group. Unterhalter spoke about formalising transformation initiatives at the Bar and in is group, but skirted his own track record.

This was raised later by Advocate Lindi Nkosi-Thomas who commented that she often saw Unterhalter on television, in big cases, and “I have yet to see you lead a black practitioner?”

Unterhalter said this perception was “not correct” and that after recently doing an “audit” he found that “black practitioners feature very frequently in teams that I lead”. None of the commissioners pushed Unterhalter on the numbers his audit revealed.

Economic Freedom Fighters MP Julius Malema did ask Unterhalter about his “accepting a brief with an all-white team at the Marikana commission, where the candidate had represented Deputy President Cyril Ramaphosa.

Unterhalter stood by his line that he didn’t think “it was invariably the case” that one could appoint black or female juniors all the time.

Malema pushed Unterhalter on the Marikana Commission and whether he had advised Ramaphosa — who was a non-executive director at Lonmin when the 2012 massacre which left 34 of the company’s employees dead, happened — to apologise for his alleged role in the massacre.

Unterhalter said: “I don’t believe my advise on that was ever sought.” A position he maintained in follow-up questions from Malema until Mogoeng cut that line of questioning as being irrelevant to the interview — and then started his own tirade against NGOs.