Judge David Unterhalter was grilled by the Judicial Service Commission (JSC) on Tuesday for failing to recuse himself from a matter he had sat on in another court.
All five contenders for the two vacancies in the Constitutional Court were asked if they would recuse themselves if confronted with a matter they had previously decided on. Everyone, including Unterhalter, said they would do so.
But Unterhalter was confronted with evidence he had dismissed a petition for leave to appeal while acting at the Supreme Court of Appeal and later agreed to the same decision at the Constitutional Court where he is an acting judge.
There was a 30-minute adjournment for Unterhalter to check his emails to be able to answer the questions from commissioner Mvuzo Notyesi.
Unterhalter told the JSC he was part of a decision by a quorum of Constitutional Court judges and that his presence did not change the outcome.
Economic Freedom Fighters leader Julius Malema tackled him over this, citing the “morality” of the impact on the image of the judiciary.