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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 biography | Updated May 2024

Judge David Unterhalter is a judge of the Gauteng High Court, Johannesburg.

Until his 2018 appointment as judge of the high court in Gauteng David Unterhalter had been one of South Africa’s leading silks (senior counsel), 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 landmark constitutional law cases which are the bread and butter of that arear of the law. These include President of the Republic of South Africa v Masethla, which dealt with a constitutional challenge to classified documents and the president’s dismissal of the head of intelligence; 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.

In addition to his advocates’ practice, Unterhalter was also an academic: lecturer, senior lecturer, full professor and visiting professor at several local and international universities including Oxford (1985 – 1987), University College London (2003), Columbia Law School (2008), Cape Town (2014 – 2017), and Wits University (1984 –2013). There, he taught and published on constitutional law, international trade law, competition law, civil procedure and the law of evidence, among others.

Among his numerous academic papers include Professional Privilege and the Proof of Innocence, which argued that privilege in the law of evidence 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. He contributed to two handbooks on international trade law, and also the textbook Competition Law, published in 2002, which made an early contribution to the field in South Africa.

Since 2018 high court appointment, Unterhalter has written several important judgments.

In Ndoro v South African Football Association, a case concerning the mid-season transfer of a famous football player, Unterhalter grappled with the question of whether private entities may exercise public powers and perform public functions for the purposes of administrative law review. In this case, he found that, even though SAFA and the Premier Soccer League are private entities, they still discharge public functions as official regulators of football in South Africa.

After the spectacular, multi-billion-dollar collapse of the Steinhoff furniture conglomerate through fraud by its executives, shareholder Ms Dorothea de Bruyn sought to hold Steinhoff directors personally liable for her losses. In a meticulous 100-page judgment reported as De Bruyn v Steinhoff International, Unterhalter found that both the common law and the new Companies Act only allowed companies (and not shareholders) to hold directors liable for breach of fiduciary duties and any losses incurred.

Since his appointment to the high court in 2018, Unterhalter has also spent stints acting as a judge of the Competition Appeal Court (Jun 2018 – Dec 2021), the Supreme Court of Appeal (June 2020 – Nov 2023) and a spell at the Constitutional Court (Jan – May 2022).

In Blind SA v Minister of Trade & Industry – the first copyright case to reach the Constitutional Court – Unterhalter dealt with the constitutionality of the restricting provisions set out in the Copyright Act, which did not allow the republishing of books in braille, for the benefit of the visually impaired. Unterhalter found that the Copyright Act’s lack of exceptions for the visually impaired constituted unfair discrimination on the grounds of discrimination and was invalid. He then crafted a ‘reading-in’ remedy, which allows books to be published in braille while Parliament completes its comprehensive reform of the Copyright Act.

The South African Research Chair in Property Law, Professor Caroline Ncube, co-writing in the Constitutional Court Review Dr Sanya Samtani, hail this judgment thus: “although on the face of it, this judgment deals with the technocratic province of copyright law, it is one that is deeply connected to the Constitution and its role in ensuring the full and equal participation of people with disabilities in society.”

At the height of the loadshedding power crisis, Unterhalter wrote the minority judgment a 5-4 ruling of the Constitutional Court in Eskom Holdings v Vaal River Development Association (in which justices Kollapen, Majiedt and Mlambo concurred). The case concerned the constitutionality of power utility Eskom’s decision to reduce (throttle’) electricity supply to a municipality that had not paid its bills, without notifying the residents. The question is whether this infringed on constitutional rights of the municipality’s residents?

The majority (per Madlanga, with Mathopo, Mhlantla, Theron and Tshiqi concurring), found that Eskom’s decision has negative consequences on the resident’s constitutional rights through no fault of their own. This was unconstitutional, the majority said, and this entitled the residents with the right to interdict Eskom’s conduct. However, the majority stopped short of stating that the residents had a constitutional right to electricity.

In the minority judgment, Unterhalter drew a distinction between the content of rights written in the constitution, versus the consequences of state conduct which might infringe those rights. While Eskom’s conduct impacted on the resident’s rights, he said, this did not give the residents self-standing rights that they could enforce against Eskom through an interdict. He therefore would have dismissed their appeal.

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

While Unterhalter has rightly enjoyed a a stellar reputation, he has not enjoyed the same reception at the JSC. He has appeared before the JSC several times since April 2021, for promotion to either the SCA or the Constitutional Court. For various reasons ­– including his membership of the SA Jewish Board of Deputies, his contribution to transformation of the legal profession, an error he made on an appeal, and a general animosity towards him – he has not been successful.

This has drawn widespread criticism of the JSC, and mired the body in controversy. Twice in interview rounds where Unterhalter has been involved the JSC has been forced to rerun those interviews after NGOs took the body to court.

Rightly or wrongly, Unterhalter’s prospects at JSC’s interviews have been held up as a test for how well the body carries out its constitutional functions.

SCA Interview | May 2024

In May 2024 Judge Unterhalter was interviewed by the JSC for a position on the Supreme Court of Appeal.

Judge Unterhalters interview went incredibly well. The Chief Justice even joked about not having to explain the rules of the interview process to him, as he was already familiar, having appeared before the commission about four times before.

When Commissioner Dodovu asked him what he had learnt from his past interviews, and if he had reflected on them, and adjusted his approach to the interview process; Unterhalter answered in a humble demeanour, that upon reflection, he now understood why the commissioners ask the questions they do – and how it assists them in the decision-making process. He expressed his regret at the hostility of the October 2023 interview, and the role he had played. He said that on reflection, he now knows and acknowledges that he made a mistake on the issue of being involved in granting leave to appeal at both SCA and CC level. He admits that he was wrong, and that he should have recused himself. He said that he had learnt from his mistake, and that is why he chose to avail himself to appear in front of the commission, once again. The rest of Judge Unterhalter’s interview went well.

Judge Unterhalter’s application to the SCA was successful, he was recommended for appointment to the Supreme Court..

SCA Interview Synopsis | October 2023:

SCA Deputy President Petse – who seemed to be on a mission to secure the best talent for his court and was willing to go to war over his favourites –  confirmed in his first question that Unterhalter had acted for 10 terms at the SCA, “are your prepared to move to Bloemfontein?” he asked. “I would be happy to serve in Bloemfontein,” Unterhalter replied, “there are things to appreciate about the city like the planetarium, which I have just visited,” drawing laughs around the room.

The rest of his interview went pretty well, up until Commissioner Nyambi brought up his April 2022 Constitutional Court interview and asked him if there are any objections based on corrections that he would like to raise. Unterhalter took the opportunity to address the allegations against him from taking bribes. He explained that his device was hacked, and that a member of the public who claimed to have duped by that has been on a campaign against with allegations of corruption. These were baseless, he said, and that the JCC has not even entertain the issue.

Commissioner Dodovu then brought up an issue that arose at Unterhalter’s April 2023 interview (of Unterhalter’s failure to recuse himself in the Concourt in a matter he dealt with at the SCA). Dodovu assured him that said he would not use the incident against Unterhalter in this round of interviews but simply wanted to know if Unterhalter acknowledges the mistake.

“[T]he last interview was not a fair one,” Unterhalter said, adding that he felt that he had been ambushed and taken by surprise. “The JSC’s conduct in that last interview is completely contrary to the written criteria provided for by the JSC,” adding that the issue has unfairly taken over his interview in the last round. He added that it was inappropriate for the commissioner to raise this issue and that he is not willing to engage.

Dodovu assured him that he only brought the issue up because Unterhalter admitted to this mistake, and wanted to inquire as to how he would ensure that this error would not happen again – as a player cannot be a referee in the same game.

Still refusing to acknowledge that it was a mistake on his part, Unterhalter went on “the cases coming to the Constitutional Court are voluminous, and no one had picked up that this was an error…Therefore saying that it was a mistake means that it was a collective error made by everyone in the court, including the clerks and the justices. Further on that point, I do not think it wise… or that it is the commission’s intention to accuse all the justices of being unfit for the bench …because technically every judge had not picked up on that mistake…. I do not accept that this is a mistake… and that it is not a matter of being a player and a referee, but rather being a referee in two contexts.”

A further back-and-forth ensued between Unterhalter and Dodovu over whether this was a mistake. With Unterhalter explaining the fine nuances of appeal law and procedure at the SCA and CC, and how this could not give rise to the mistake, and more.

At this point, Chief Justice Zondo interjected and said that previously, Unterhalter had said that taking part in the adjudication of an application at both court levels is an oversight. As a result of this issue, the Chief Justice instituted a new process [at the CC] to prevent this ordeal from happening again, and explained how the new process works. All this to explain that Unterhalter’s ‘mistake’ is unlikely to arise again [and the JSC should move on].

However, the CJ’s intervention did not help the situation and things got even more inflamed. Several more questions came, including from commissioners Xaba, Marumoagae and the CJ.

In an attempt to diffuse the situation (and rescue Unterhalter) Ngcukaitobi explained that in the previous interview, Unterhalter acknowledged that it was an oversight, and it would never happen, so why is he raising issues of law and procedure now?  “I have worked with you and seen you as an advocate argue the finest nuances of a point in law… however, it would unwise if you intend to apply that [the attitude of an advocate] for the role of a judge… There are certain times where you do have to concede.”. Unterhalter thanked Ngcukaitobi for his intervention but was still not moved.

Unterhalter’s application to the SCA was unsuccessful, as he was not recommended for appointment.

SCA Interview Synopsis | April 2022:

Gauteng High Court Judge David Unterhalter was omitted from the list of candidates recommended for appointment by the Judicial Service Commission (JSC) to President Cyril Ramaphosa — causing much gnashing of teeth and handwringing among the white legal establishment and media houses.

This move limited the president to only being able to fill one of the two advertised vacancies at the Constitutional Court. The Constitution requires the JSC to submit three more names, than there are vacancies at the apex court which it has interpreted to mean five names for two vacancies. With the culling of Unterhalter, only four names made the final list.

Unterhalter was acting at the Constitutional Court at the time of his interview, and he described the experience as “a privilege” and “important for understanding how the court works”. He also pointed to judgments handed down while acting at the Supreme Court of Appeal as a “not inconsiderable body of work” that reflected his legal interests and “how I go about my work”.

Media focus on Unterhalter’s exclusion had settled almost solely on questioning by commissioners Mvuso Notyesi (one of two lawyers representing the attorney’s profession at the JSC) and Julius Malema (parliamentarian and Economic Freedom Fighters leader) as the reason why Unterhalter was excluded.

Notyesi and Malema had raised what Unterhalter conceded was “human error”: he had not recused himself in deciding to dismiss a leave to appeal application to the Constitutional Court, where he is currently acting, despite having sat on a Supreme Court of Appeal panel, which had previously dismissed the application.

Yet, there were other glaring issues raised during his interview that may have contributed to his being left off the list — especially what appeared to be a long-standing inability to lead black female junior counsel while practising at the Bar. This raised concerns about Unterhalter’s commitment to transformation.

This matter was traversed by two new additions to the commission, Sesi Baloyi SC (one of four presidential appointments) and Kameshni Pillay SC (replacing Dali Mpofu SC as one of two representatives of the advocates profession).

Their quizzing of Unterhlater on the paucity of black junior females he had led struck palpable blows to his candidacy.

When Unterhalter was interviewed in October last year he claimed to have led many female and black junior counsel in cases, including Baloyi herself.

Before this round of interviews began the JSC, on behalf of the new commissioner, wrote to Unterhalter asking him to clarify whether the “Baloyi” mentioned in his previous interview was indeed the highly regarded female silk.

Unterhalter conceded that he had been mistaken. In his interview Unterhalter noted that Baloyi had represented a co-respondent in the MTO Forestry matter before the Competition Commission: “We were effectively on the same side, but I was not leading her,” Unterhalter said.

He then produced a list of 39 advocates that he had led in the approximately 350 cases he had litigated which had resulted in reportable judgments being handed down.

Unterhalter described the list as “not trivial” and stated that he had “sought to work” with “women practitioners and black practitioners” on lines of work that they would historically not get.

After a “rough calculation” Pillay observed that of the women on Unterhalter’s list, only seven were black. Unterhalter disputed this claiming there were eight.

Pillay noted Unterhalter’s 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, extrapolating that of the names, as many as three were pupils at the time and that there was “a cause for concern that there are no senior black women” Unterhalter had worked with, despite that power.

Unterhalter appeared flustered. He started to stammer. The smile which had appeared writ large on his face for most of the interview — presumably because he assumed he would be a shoo-in for recommendation this time with only five candidates — disappeared.

“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. It 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,” he responded.

Unterhalter went further to suggest 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 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.

Picking up on Unterhalter’s defence, Pillay followed up by asking “where you have worked with black women, it was on the basis of you extending opportunities?

“I think that was certainly the result” Unterhalter responded.

“The logical consequence of that is that you haven’t worked with a black woman junior where you depend and you trust that junior to work with you on the matter,” Pillay shot back.

Unterhalter refused to accept that proposition and talked about the “extraordinarily non-hierarchical” manner in which he worked. But the hits were palpable.

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 a kind of juniority that confirmed many had only been led by Unterhalter in his final few years at the Bar. It also reinforced the inference that he may have begun leading black female juniors with one eye on appointment to the judiciary. Questions about the number of female black juniors silks have led to pop up often at the JSC.

Unterhalter stammered and stuttered when this was pointed out to him and danced around an answer.

Baloyi closed the deal by saying 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. The inference that Unterhalter started leading black female juniors in a panicked, last-minute flurry because he wanted to become a judge hung over his interview. A good enough reason for him not to be recommended in the eyes of many commissioners, it seemed.

Constitutional Court Interview Synopsis | October 2021:

After a tumultuous April 2021 round of interviews for the Constitutional Court, where the Judicial Service Commission was seemingly on its worst behaviour, the NGO CASAC (Council for the Advancement of the SA Constitution) took the. JSC to court on review for the deplorable way it ran that round of interview. After a series of negotiations, the parties reached an out-of-court settlement: the JSC would not concede that it was wrong, however, it would re-run the interviews for the Concourt and re-invite all the candidates.

All but one of the candidates returned. Highly regarded Gauteng High Court Judge David Unterhalter, who had faced a grilling over his “white male privilege” had the same torrential time as he did on the previous occasion. In an interview that ran for just over two hours, Julius Malema took issue with the fact that Unterhalter had spent a long career in practice before he applied to the High Court, with ambitions of finally being in the apex court, “some of us had this concern, that it looks like you are in transit…you are rushing somewhere.”

“I applied for the High Court to serve as a high court judge as quickly as possible after my time at the WTO… and I did the work of a high court judge in every aspect, without any expectation of further appointment,” Unterhalter explained, dislodging the impression that he had always harboured ambitions for higher office. However, he made it clear that he does not believe that the JSC apply a “wait-your-turn” approach to appointments, “it’s about what is best for the Court and what is best for the legal system”.

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

Constitutional Court Interview Synopsis | April 2021:

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 antisemitism 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.

Gauteng High Court Interview synopsis | October 2017:

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 mean 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 advice 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.