Judge David Unterhalter has sought to clarify a “human error” that sparked much debate in his appearance before the April 2022 Judicial Service Commission (JSC) interviews.
Unterhalter was probed on failing to recuse himself in a decision to dismiss a leave to appeal application to the Constitutional Court, where he was acting at the time – despite having sat on the same case at the Supreme Court of Appeal (SCA).
Unterhalter is appearing at the JSC as one of the ten candidates vying for a post in the Supreme Court of Appeal.
He told the body that, upon reflection, he has reached a different conclusion and he does not accept that it was a mistake in law.
“It’s a contentious issue, certainly, but I think that because the nature of the test that is applicable for the purposes of determining appeal in the Supreme Court of Appeal and the test applicable for an appeal in the Constitutional Court are not the same, and although there are certain common elements, the fundamental, overall question is quite distinctive.”
“Therefore, the proposition that was put to me last time is simply not a simple proposition at all as a matter of law. But I don’t accept in the first place that it was a mistake,” explains Unterhalter.
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