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David Unterhalter

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The Honourable
David Unterhalter
Judge of the Supreme Court of Appeal
Incumbent
Assumed office
1 July 2024
Appointed byCyril Ramaphosa
Judge of the High Court
In office
1 January 2018 – 30 June 2024
Appointed byJacob Zuma
DivisionGauteng
Personal details
Born (1958-11-18) 18 November 1958 (age 65)
Johannesburg, Transvaal
Union of South Africa
ParentJack Unterhalter
Alma materTrinity College, Cambridge
University of the Witwatersrand
University College, Oxford

David Unterhalter (born 18 November 1958) is a South African jurist and judge of the Supreme Court of Appeal of South Africa. He is also professor of law at the University of Cape Town. Before he was appointed to the bench of the Gauteng High Court in January 2018, Unterhalter was a prominent advocate, specialising in public law, competition law, and trade law. He was called to the Johannesburg Bar in 1990 and took silk in 2002.

Early life and education

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Unterhalter was born on 18 November 1958 in Johannesburg.[1] His father was Jack Unterhalter, a lawyer who attained public prominence representing political prisoners during apartheid.[2][3] Unterhalter attended Trinity College, Cambridge, where he completed a BA in 1980, converted to an MA in 1987. He went on to an LLB at the University of the Witwatersrand in 1984 and a BCL at University College, Oxford in 1985.[1]

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Unterhalter was admitted as an advocate of the Supreme Court of South Africa in 1990. He practised as an advocate at the Johannesburg Bar for the next 27 years, taking silk in 2002.[1] He argued several high-profile cases in the Supreme Court of Appeal and Constitutional Court, including Democratic Alliance v President, on Menzi Simelane's appointment to the National Prosecuting Authority;[4] Eisenberg v Minister of Home Affairs, on the constitutionality of immigration regulations; S v Jordan, on the criminalisation of prostitution;[5] Glenister v President, on the disbanding of the Scorpions;[6] Islamic Unity Convention v Minister of Telecommunications, a hate speech case;[7] and My Vote Counts v Speaker, on political party funding.[8] He also represented Deputy President Cyril Ramaphosa during Ian Farlam's commission of inquiry into the Marikana massacre.[9] In 2010, when the senate of the University of Johannesburg considered a motion to sever its ties to Ben Gurion University as part of an academic boycott of Israel, Unterhalter appeared pro bono for Ben Gurion University.[10]

While remaining a member of the Johannesburg Bar, Unterhalter was called to the English Bar in 2009 and joined Monckton Chambers at Gray's Inn.[1] He was a member of the Appellate Body of the World Trade Organization between 2007 and 2013, serving as its chairperson from 2010 to 2011; and, on several occasions from 2003 onwards, he served as an acting judge in the Gauteng Division of the High Court of South Africa.[1]

Gauteng High Court: 2018–2024

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In October 2017, the Judicial Service Commission interviewed Unterhalter and recommended him as suitable for permanent appointment to the Gauteng High Court.[11][12] The following month, President Jacob Zuma confirmed his appointment, which took effect on 1 January 2018.[2][13] Later that year, he was seconded as an acting judge to the Competition Appeal Court, where he served between June 2018 and December 2021.[7] In addition, he has served several stints as an acting judge in higher courts: in the Constitutional Court for two terms in 2022, and in the Supreme Court of Appeal on nine occasions between 2020 and 2024.[1]

On several occasions, Unterhalter was shortlisted for appointment to higher courts. He interviewed unsuccessfully for vacancies at the Constitutional Court in April 2021,[14] October 2021,[15][16] and April 2022;[17][18] and he interviewed unsuccessfully for a vacancy at the Supreme Court of Appeal in October 2023.[19][20] In the 2021 rounds, members of the Judicial Service Commission argued with Unterhalter over his association with the South African Jewish Board of Deputies, a conservative and generally pro-Zionist organisation; he had been appointed to the board's executive committee in 2020.[21] In the 2022 and 2023 rounds, his interviews were diverted by rigorous debate with commissioners over his failure to recuse himself from the Constitutional Court quorum in Ken Lindeque v Eskom Holdings v Mogale City Local Municipality, a matter which he had heard earlier while acting in the Supreme Court of Appeal.[22][23][24] In addition, he was questioned on several occasions about the strength of his record in leading black female junior counsel while at the bar.[2] The Judicial Service Commission's repeated omission to recommend Unterhalter for elevation was often controversial and was criticised by Freedom Under Law, by the Council for the Advancement of the South African Constitution, by the Jewish Board of Deputies, and by various commentators.[25][26][27][28][29]

Supreme Court of Appeal: 2024–present

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In May 2024, following another interview, the Judicial Service Commission recommended Unterhalter for elevation to the Supreme Court of Appeal.[30] After his appointment was confirmed by President Cyril Ramaphosa, he joined the bench on 1 July 2024.[1]

Academic appointments

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Between 2007 and 2013, Unterhalter was a professor of law at the University of the Witwatersrand, where he formerly led the Centre for Applied Legal Studies.[1] Since 2014, he has been a professor of law at the University of Cape Town. He has published in public law, trade law, and competition law.[1]

Personal life

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Unterhalter is Jewish,[2] and he was a member of the Democratic Party between 1989 and 1994.[7] He was a member of the Helen Suzman Foundation before he joined the bench.[7]

References

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  1. ^ a b c d e f g h i "Unterhalter, David". Supreme Court of Appeal. Retrieved 29 November 2023.
  2. ^ a b c d "Unterhalter weighs up his new role as judge". Jewish Report. 8 February 2018. Retrieved 29 November 2023.
  3. ^ Hawker, Dianne (6 April 2021). "Who's up for the top judicial posts in the ConCourt?". Daily Maverick. Retrieved 29 November 2023.
  4. ^ "Set aside Simelane order: ConCourt hears". News24. 8 May 2012. Retrieved 6 March 2024.
  5. ^ "Respect sex workers' privacy, Concourt hears". IOL. 5 March 2002. Retrieved 6 March 2024.
  6. ^ "Scorpions battle: Concern over separation of powers". The Mail & Guardian. 20 August 2008. Retrieved 6 March 2024.
  7. ^ a b c d "JSC Interview David Unterhalter SC". Judges Matter. Retrieved 29 November 2023.
  8. ^ "ConCourt puts Paia in the party-funding spotlight". The Mail & Guardian. 10 February 2015. Retrieved 18 January 2024.
  9. ^ "Ramaphosa: Marikana violence dastardly criminal". News24. 11 August 2014. Retrieved 29 November 2023.
  10. ^ Faull, Lionel (21 May 2010). "Varsity row over Israel links". Mail and Guardian. Archived from the original on 13 February 2021.
  11. ^ "Aspirant judges grilled on reserved judgments". Business Day. 5 October 2017. Retrieved 29 November 2023.
  12. ^ "Seven recommendations for judges made by the JSC". Business Day. 5 October 2017. Retrieved 29 November 2023.
  13. ^ Pijoos, Iavan (2 November 2017). "Zuma appoints 15 High Court judges". News24. Retrieved 29 November 2023.
  14. ^ Ferreira, Emsie (14 April 2021). "Judges Rammaka Mathopo and Mahube Molemela among five candidates for ConCourt". The Mail & Guardian. Retrieved 29 November 2023.
  15. ^ Ferreira, Emsie (5 October 2021). "JSC interviews for ConCourt, round two: better process, same outcome". The Mail & Guardian. Retrieved 29 November 2023.
  16. ^ Tolsi, Niren (12 October 2021). "JSC lets politics trump conscience and excellence". The Mail & Guardian. Retrieved 29 November 2023.
  17. ^ Mafolo, Karabo (5 April 2022). "ConCourt candidate David Unterhalter faces unexpected grilling at JSC interviews". Daily Maverick. Retrieved 29 November 2023.
  18. ^ Ferreira, Emsie (6 April 2022). "Unterhalter overlooked by the JSC for a third time". The Mail & Guardian. Retrieved 29 November 2023.
  19. ^ "Unterhalter clarifies "human error" debate at 2022 JSC interviews". SABC News. 4 October 2023. Retrieved 29 November 2023.
  20. ^ Moosa, Tauriq (4 October 2023). "JSC recommends Kathree-Setiloane and Kgoele, but not Unterhalter, for SCA". Business Day. Retrieved 29 November 2023.
  21. ^ Seleka, Ntwaagae (15 April 2021). "Attempts to get Judge Unterhalter's ConCourt bid rejected 'because of association with the board'". News24. Retrieved 29 November 2023.
  22. ^ "David Unterhalter's recusal error a hot topic at JSC interviews". Business Day. 5 April 2022. Retrieved 29 November 2023.
  23. ^ Ferreira, Emsie (7 April 2022). "JSC says Unterhalter was excluded by majority vote". The Mail & Guardian. Retrieved 29 November 2023.
  24. ^ Davis, Rebecca (4 October 2023). "JSC fills just half of Supreme Court of Appeal posts – but why?". Daily Maverick. Retrieved 29 November 2023.
  25. ^ Ferreira, Emsie (11 October 2021). "Casac demands record of deliberations on ConCourt candidates". The Mail & Guardian. Retrieved 29 November 2023.
  26. ^ "Jewish lobby slams JSC's treatment of David Unterhalter at ConCourt interviews". The Citizen. 5 October 2021. Retrieved 29 November 2023.
  27. ^ Gordin, Jeremy (14 April 2022). "What's the JSC got against David Unterhalter?". Jewish Report. Retrieved 29 November 2023.
  28. ^ "Editorial: Vendetta against Unterhalter harms the top court". Business Day. 13 April 2022. Retrieved 29 November 2023.
  29. ^ Sokutu, Brian (5 October 2023). "'Perplexing': JSC's 5th rejection of Judge Unterhalter sparks controversy". The Citizen. Retrieved 29 November 2023.
  30. ^ Davis, Rebecca (20 May 2024). "David Unterhalter among three judges given nod for SCA". Daily Maverick. Retrieved 28 September 2024.


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