NWABISA MAKUNGA | Protest seeking to vilify judge over concocted claims dangerous

Achuko's bribery allegations against Unterhalter vindictive, without merit

Judge David Unterhalter before the Judicial Service Commission in Johannesburg.
Judge David Unterhalter before the Judicial Service Commission in Johannesburg.
Image: Office of the Chief Justice

Around lunchtime on Tuesday, my colleagues and I heard a voice shouting on aloud hailer outside our Johannesburg offices: “Don’t cherry pick corruption, report all corruption, Judge Unterhalter is corrupt!”

We looked outside to find a mini-protest by three masked people at our doorstep. They carried a banner with the face of acting judge David Unterhalter, one of the candidates to be interviewed by the Judicial Services Commission next week for a permanent position at the Supreme Court of Appeals.

The protesters were accusing journalists of this publication and elsewhere of shielding alleged corruption by a sitting judge, presumably as part of some conspiracy. A cursory look on social media platform X shows that Eric Achuko, the man leading the demonstration has been at it for months, accusing judge Unterhalter of requesting and/or receiving bribes from major banks, First Rand and Absa.

Our refusal to publish his unverifiable story, to which he first alerted us in March, was to him confirmation that we too are part of this grand cover-up to shield the judge from accountability.

Notably, Achuko’s campaign has failed to gain much traction and I am mindful that writing this may potentially amplify his problematic views. The truth however is that this is an all too frequent occurrence in our public discourse. Baseless accusations such as these against the judiciary have become common place in our society and inparticular, on social media.

Left unchallenged, they poison public dialogue, sow confusion in the minds of people and steadily erode public confidence in the integrity of the courts. So what are the facts onthis matter?

Back in 2014, a trading commission in the US found that Absa and First Rand Bank had engaged in anti-competitive behaviour in that country involving pre-arranged trades in corn and soybeans. Following the findings by the commission, the two banks were ordered to pay a penalty.

Achuko, a South African, later understood this to mean a violation of US trade laws must have also been a violation of our laws. Such an infringement in the US, he believed, must have led to an increase in maize prices which affect the majority of people in SA. With this in mind, in 2019 off to the high court he went, arguing before judge Unterhalter that the two banks compromised the price of maize meal, overcharged him and millions of South Africans and thus threatened food security in SA.

The banks opposed his application. On the basis of expert evidence before him, judge Unterhalter found that the conduct of the banks in the US had no bearing on the price of maize in SA. Achuko could not produce evidence to the contrary and his application was dismissed.

Fast forward to February this year, judge Unterhalter now acting SCA judge, says he woke up to numerous calls and emails from people who had received an email, titled “payment advise” ( read advice), purportedly from him. Upon investigation he was advised by the IT team at the court in Bloemfontein that his email was hacked and this spam mail was sent out to hundreds of people who had, at one point or another, exchanged emails with his office.

These include colleagues, friends, strangers and even the late human rights lawyer George Bizos. One of the recipients was one Eric Achuko who, without question, interpreted the mail and the unopened attachment, to be a request by the judge for a bribe. 

On this basis Achuko concluded that the reason he lost his case five years before must be that the banks had bribed Judge Unterhalter. So confident is Achuko in his belief that he not only harasses journalists to write his “expose” and tweets endlessly about it, he wrote to the JSC objecting to the commission’s intention to interview Unterhalter for a permanent SCA post.

In his letter to the JSC, Unterhalter points to evidence that the letter attached to the mail was doctored, including what appears to be a cut and paste of his official signature. He further provides correspondence from others who received the same mail to demonstrate it was spam.

To be clear, I hold no brief for Unterhalter or any other member of the judiciary. When judges err, we must criticise them. When they engage in acts of misconduct, they must be impeached. However, if we are to build a truly just society, we have as much a responsibility to hold power to account as we do to expose disinformation that seeks to destroy public trust in institutions that safeguard our constitutional order.

*Makunga is Sowetan Editor

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