- Eric Achuko sought to revive his dismissed misconduct complaint against Judge David Unterhalter through a High Court review.
- The court found that he sued a superior court judge without obtaining prior consent under section 47 of the Superior Courts Act.
- Judge Lenyai dismissed the application with costs, holding that the defect could not be cured by condonation.
A bid to force the Judicial Service Commission (JSC) to reconsider a dismissed judicial misconduct complaint has failed after the High Court in Pretoria ruled that the proceedings were invalid from the outset.
Judge J Lenyai held that Eric Achuko did not obtain the prior consent required by Section 47 of the Superior Courts Act before instituting civil proceedings against Judge David Unterhalter, making it unnecessary for the court to consider the merits of the underlying complaint.
Complaint followed compromised email
The dispute began after Achuko received an email that appeared to come from Judge Unterhalter requesting payment. Judge Unterhalter later explained that his email account had been compromised.
Despite that explanation, Achuko lodged a complaint with the JSC alleging that the judge had accepted a bribe. On 22 December 2023, the Judicial Conduct Committee unanimously dismissed the complaint, stating, “We are of the strong view that the complaint is baseless. It is accordingly dismissed.”
Achuko then lodged what he described as an appeal on 5 January 2024. However, the Judicial Conduct Committee informed him that the JSC Act did not provide for an appeal against complaints dismissed under Section 16.
“The JSC Act makes no provision for an appeal against a ruling made in respect of a complaint that has been dismissed in section 16. Therefore, your appeal in terms of Section 17(7) is invalid,” it wrote in response.
In November 2025, Achuko approached the High Court seeking an order declaring that decision unlawful, reinstating his appeal, and condoning his non-compliance with section 47.
JSC abided, but the judge opposed
The Judicial Service Commission filed a notice to abide by the court’s decision and later indicated through the State Attorney that it would not oppose an order remitting the matter for fresh consideration.
Judge Unterhalter opposed the application and raised two preliminary points of law, arguing that the proceedings were fatally defective. Judge Lenyai said the case was not about determining whether the bribery allegations were true.
“The court is not called upon in these proceedings to determine whether the allegations originally made against the second respondent were true.” Instead, the judge said the decisive issue was whether Achuko had complied with the statutory requirements governing proceedings against judges.
Prior consent is a legal prerequisite
Judge Lenyai found that Section 47 creates a mandatory condition that must be satisfied before any civil proceedings may be instituted against a superior court judge. “The language of the provision is peremptory. It prohibits the institution of civil proceedings against a judge unless the prescribed consent has first been obtained.”
The judgment relied on recent Full Court authority confirming that prior consent protects judicial independence and shields judges from vexatious litigation.
Because Achuko instituted the review without first obtaining permission from the head of court, the proceedings lacked the statutory foundation required by law.
Court rejected layperson defence
Achuko argued that he was representing himself and should receive an indulgence because he was unaware of the legal requirement.
Judge Lenyai accepted that courts often assist unrepresented litigants with procedural difficulties but drew a clear distinction between procedural indulgence and statutory compliance. “The distinction between procedural indulgence and statutory non-compliance is critical.”
The judge held that ignorance of the law could not excuse failure to comply with a mandatory statutory condition imposed by Parliament.
Defect could not be cured
Achuko also asked the court to condone his failure to obtain prior consent. Judge Lenyai rejected that argument, finding that Section 47 requires consent before proceedings begin and that the defect cannot be remedied retrospectively. “Subsequent correspondence cannot retrospectively transform an invalid institution into a valid one.”
The court added that neither the JSC’s decision to abide nor Judge Unterhalter’s participation in the litigation could validate proceedings that had been unlawfully instituted.
Application dismissed with costs
Having upheld the preliminary objection, Judge Lenyai said it was unnecessary to determine the alleged appeal, the Promotion of Administrative Justice review issues, or the substantive lawfulness of the Judicial Conduct Committee’s decision.
The court dismissed the application with costs, concluding that it amounted to frivolous and vexatious litigation against a judge. “I am not convinced that the application is a genuine public interest and constitutional challenge brought against a state entity. This, in my view, is a frivolous and vexatious litigation against a judge.”
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