“My concurrence is correctly reflected in the order that I have been given and which I recall joining in respect of the dismissal of the application for leave to appeal,” Unterhalter said. He said he was not in a position to determine the application for leave to appeal before the Constitutional Court, having refused the petition in the SCA.
“I can only say that it was an error. I did not recall I had sat on the petition. Commissioners will know that many of these petitions come and one sits in them in their many numbers,” said Unterhalter.
Unterhalter said the application to the Constitutional Court did not, in the body of the application, actually reference him or his name, nor Mocumie’s.
“I did not see I had sat [in the petition]. None of my colleagues at the Constitutional Court noted this fact nor the clerks that assisted in the preparation of their work.”
He said he should consequently have recused himself before the Constitutional Court.
When asked what has changed since he was last interviewed for a vacancy in October last year, Unterhalter said he now has had the privilege of acting for a term in the Constitutional Court.
“Because since that is the court that I aspire to sit in on a permanent basis, I think that has been a very helpful experience both in understanding how the court works and engaging in the important work that it does.
“That is a relevant factor that is additive to things that I have already placed before the commission,” Unterhalter said.
He is one of five candidates being interviewed by the JSC for the two vacant positions in the Constitutional Court.