David Unterhalter (born 18 November 1958) is a South African jurist and

judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

of the

Supreme Court of Appeal of South Africa The Supreme Court of Appeal (SCA), formerly known as the Appellate Division, is the second-highest appellate court, court of appeal in South Africa below the Constitutional Court of South Africa, Constitutional Court. The country's apex court ...

. He is also professor of law at the

University of Cape Town The University of Cape Town (UCT) (, ) is a public university, public research university in Cape Town, South Africa. Established in 1829 as the South African College, it was granted full university status in 1918, making it the oldest univer ...

. Before he was appointed to the bench of the Gauteng High Court in January 2018, Unterhalter was a prominent advocate, specialising in

public law Public law is the part of law that governs relations and affairs between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that ...

competition law Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust ...

, and trade law. He was called to the

Johannesburg Johannesburg ( , , ; Zulu language, Zulu and Xhosa language, Xhosa: eGoli ) (colloquially known as Jozi, Joburg, Jo'burg or "The City of Gold") is the most populous city in South Africa. With 5,538,596 people in the City of Johannesburg alon ...

Bar in 1990 and

took silk A King's Counsel ( post-nominal initials KC) is a senior lawyer appointed by the monarch (or their viceregal representative) of some Commonwealth realms as a "Counsel learned in the law". When the reigning monarch is a woman, the title is Qu ...

in 2002.

Early life and education

Unterhalter was born on 18 November 1958 in

. His father was Jack Unterhalter, a lawyer who attained public prominence representing political prisoners during

apartheid Apartheid ( , especially South African English: , ; , ) was a system of institutionalised racial segregation that existed in South Africa and South West Africa (now Namibia) from 1948 to the early 1990s. It was characterised by an ...

. Unterhalter attended

Trinity College, Cambridge Trinity College is a Colleges of the University of Cambridge, constituent college of the University of Cambridge. Founded in 1546 by King Henry VIII, Trinity is one of the largest Cambridge colleges, with the largest financial endowment of any ...

, 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 The University of the Witwatersrand, Johannesburg (), commonly known as Wits University or Wits, is a multi-campus Public university, public research university situated in the northern areas of central Johannesburg, South Africa. The universit ...

in 1984 and a BCL at

University College, Oxford University College, formally The Master and Fellows of the College of the Great Hall of the University commonly called University College in the University of Oxford and colloquially referred to as "Univ", is a Colleges of the University of Oxf ...

in 1985.

Legal practice

Unterhalter was admitted as an advocate of the

Supreme Court of South Africa The Supreme Court of South Africa was a superior court of law in South Africa from 1910 to 1997. It was made up of various provincial and local divisions with jurisdiction over specific geographical areas, and an Appellate Division which was th ...

in 1990. He practised as an

advocate An advocate is a professional in the field of law. List of country legal systems, Different countries and legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a ba ...

at the Johannesburg Bar for the next 27 years, taking silk in 2002. He argued several high-profile cases in the Supreme Court of Appeal and

Constitutional Court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ru ...

, including '' Democratic Alliance v President'', on Menzi Simelane's appointment to the

National Prosecuting Authority The National Prosecuting Authority (NPA) is the agency of the South African Government responsible for state prosecutions. Under Section 179 of the South African Constitution and the National Prosecuting Authority Act of 1998, which establi ...

; ''Eisenberg v Minister of Home Affairs,'' on the constitutionality of immigration regulations; '' S v Jordan'', on the criminalisation of prostitution; '' Glenister v President'', on the disbanding of the

Scorpions Scorpions are predatory arachnids of the Order (biology), order Scorpiones. They have eight legs and are easily recognized by a pair of Chela (organ), grasping pincers and a narrow, segmented tail, often carried in a characteristic forward cur ...

; ''Islamic Unity Convention v Minister of Telecommunications'', a

hate speech Hate speech is a term with varied meaning and has no single, consistent definition. It is defined by the ''Cambridge Dictionary'' as "public speech that expresses hate or encourages violence towards a person or group based on something such as ...

case; and '' My Vote Counts v Speaker'', on

political party funding Political party funding is a method used by a political party to raise money for campaigns and routine activities. The funding of political parties is an aspect of campaign finance. Political parties are funded by contributions from multiple sou ...

. He also represented Deputy President

Cyril Ramaphosa Matamela Cyril Ramaphosa (born 17 November 1952) is a South African businessman and politician serving as the 5th and current President of South Africa since 2018. A former Anti-Apartheid Movement, anti-apartheid activist and trade union leade ...

during Ian Farlam's commission of inquiry into the Marikana massacre. In 2010, when the senate of the

University of Johannesburg The University of Johannesburg, colloquially known as UJ, is a public university A public university, state university, or public college is a university or college that is State ownership, owned by the state or receives significant fundi ...

considered a motion to sever its ties to Ben Gurion University as part of an

academic boycott of Israel The current campaign for an academic boycott of Israel was launched in April 2004 by the Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI) as part of the Boycott, Divestment and Sanctions (BDS) campaign. The campaign c ...

, Unterhalter appeared pro bono for Ben Gurion University. 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 The Honourable Society of Gray's Inn, commonly known as Gray's Inn, is one of the four Inns of Court (professional associations for barristers and judges) in London. To be called to the bar in order to practise as a barrister in England and Wale ...

. He was a member of the

Appellate Body The Appellate Body of the World Trade Organization (WTOAB) is a standing body of seven persons that hears appeals from reports issued by Judicial panel, panels in disputes brought on by WTO members. The WTOAB can uphold, modify or reverse the le ...

of the

World Trade Organization The World Trade Organization (WTO) is an intergovernmental organization headquartered in Geneva, Switzerland that regulates and facilitates international trade. Governments use the organization to establish, revise, and enforce the rules that g ...

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 The Gauteng Division of the High Court of South Africa is a superior court, superior court of law which has general jurisdiction over the South African province of Gauteng and the eastern part of North West (South African province), North West pro ...

of the

High Court of South Africa The High Court of South Africa is a superior court of law in South Africa. It is divided into nine provinces of South Africa, provincial divisions, some of which sit in more than one location. Each High Court division has general jurisdiction ov ...

Gauteng High Court: 2018–2024

In October 2017, the Judicial Service Commission interviewed Unterhalter and recommended him as suitable for permanent appointment to the Gauteng High Court. The following month, President

Jacob Zuma Jacob Gedleyihlekisa Zuma (; born 12 April 1942) is a South African politician who served as the fourth president of South Africa from 2009 to 2018. He is also referred to by his initials JZ and clan names Nxamalala and Msholozi. Zuma was a for ...

confirmed his appointment, which took effect on 1 January 2018. Later that year, he was seconded as an acting judge to the Competition Appeal Court, where he served between June 2018 and December 2021. 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. On several occasions, Unterhalter was shortlisted for appointment to higher courts. He interviewed unsuccessfully for vacancies at the Constitutional Court in April 2021, October 2021, and April 2022; and he interviewed unsuccessfully for a vacancy at the Supreme Court of Appeal in October 2023. 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 Zionism is an Ethnic nationalism, ethnocultural nationalist movement that emerged in History of Europe#From revolution to imperialism (1789–1914), Europe in the late 19th century that aimed to establish and maintain a national home for the ...

organisation; he had been appointed to the board's executive committee in 2020. In the 2022 and 2023 rounds, his interviews were diverted by rigorous debate with commissioners over his failure to

recuse Recusal is the legal process by which a judge, juror, or other adjudicator steps aside from participating in a case due to potential bias, conflict of interest, or appearance of impropriety. This practice is fundamental to ensuring fairness and ...

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. In addition, he was questioned on several occasions about the strength of his record in leading black female junior counsel while at the bar. 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.

Supreme Court of Appeal: 2024–present

In May 2024, following another interview, the Judicial Service Commission recommended Unterhalter for elevation to the Supreme Court of Appeal. After his appointment was confirmed by President

, he joined the bench on 1 July 2024.

Academic appointments

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. Since 2014, he has been a professor of law at the

. He has published in

, trade law, and

Personal life

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

References

External links

David Unterhalter
at Supreme Court of Appeal
David N. Unterhalter
at Judges Matter
Review
by the General Council of the Bar {{DEFAULTSORT:Unterhalter, David 1958 births Living people People from Johannesburg Lawyers from Johannesburg 20th-century South African lawyers 21st-century South African lawyers 21st-century South African judges South African Senior Counsel University of the Witwatersrand alumni Academic staff of the University of the Witwatersrand Academic staff of the University of Cape Town Alumni of Trinity College, Cambridge Alumni of University College, Oxford Judges of the Gauteng High Court Judges of the Supreme Court of Appeal (South Africa)