Magistrate Commission on Disciplinary Matters

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Justice and Correctional Services

26 August 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

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The Committee convened in a virtual meeting to be briefed by the Magistrates’ Commission on certain disciplinary matters, including that of the Chief Magistrate of Kempton Park, Ms Judy van Schalkwyk.

The Committee heard that Ms van Schalkwyk was charged for misconduct and was suspended from office on 4 June 2013, pending a full inquiry into her fitness to hold office as a magistrate. On 17 March 2021, the Chairperson of the Magistrates’ Commission wrote a letter to the Minister of Justice and Correctional Services regarding the outcome of the disciplinary proceedings related to Ms van Schalkwyk. The Minister considered the entire matter, and confirmed Ms van Schalkwyk’s suspension on 27 July 2021. In terms of the Magistrates’ Act, the report was submitted to Parliament for consideration. Ms van Schalkwyk then brought review proceedings with the three respondents to the matter being the Minister, the Magistrates’ Commission, and the presiding officer who had issued a judgment with the sanction of dismissal.

The Committee was told that, despite the Minister being cited as the first respondent, no relief was sought against him. The only relief sought was from the Magistrates’ Commission and the presiding officer. This raised the question whether Parliament was then entitled to proceed in the absence of any relief being sought. There was nothing barring Parliament from proceeding with the matter as no relief was sought against the Minister, in terms of taking a decision on the recommendation by the Minister. On the other hand, it might be just and fair to wait for the outcome of the review application.

The Chairperson noted that the Committee had received a letter from Ms van Schalkwyk’s attorneys who asked that the Committee stay the matter until the review application had been heard. Members expressed the view that extraordinary facts or circumstances would be necessary for the Committee to justify postponing the matter, given the lengthy time that this matter had been on record. The Committee must consider its duties and obligations regarding this matter to avoid a situation where it could be accused of dragging its feet while being under a constitutional obligation to finalise the matter. The Committee agreed to proceed with the matter on 9 September, after which it would be in the purview of the National Assembly.

Meeting report


The Chairperson convened the virtual meeting and welcomed Members and the delegation from the Magistrates’ Commission that consisted of Adv Cassim Moosa, Chairperson of the Ethics Committee, and Mr Johannes Meijer, Member of the Magistrates’ Commission. The only item on the agenda was for the Committee to be briefed by the Magistrates’ Commission on certain disciplinary matters, including that of the Chief Magistrate of Kempton Park, Ms Judy van Schalkwyk. Adv Moosa, the Chairperson of the Ethics Committee, presented the briefing to Members.

He told the Committee that Ms van Schalkwyk was charged with misconduct and suspended from office on 4 June 2013, pending a full inquiry into her fitness to hold office as a magistrate. In 2018, the Magistrates’ Commission appeared before the Committee to request that Ms Schalkwyk’s remuneration be provisionally withheld, and the request was acceded to on 2 October 2018.

The background to the matter was that numerous allegations had been made against her, including refusal to cooperate with lawful directives and an abusive and inappropriate attitude to the Chief Justice. It was alleged that she severely abused her powers by cajoling or threatening colleagues, especially those on contract appointments, to assist her with personal matters during and outside office hours, sometimes taking them out of their courts. It was alleged that she gambled during office hours, had run up substantial debt and had borrowed money from colleagues. It was also alleged that she had shown conflicts of interest and requested other magistrates to write her judgments.

Disciplinary proceedings commenced, and two years later Ms van Schalkwyk was convicted of 13 counts of misconduct out of the 24 counts on which she had been charged. On 2 October 2020, the sanction of dismissal was issued. Ms van Schalkwyk then submitted her representations on the sanctions within the timelines that were required, and the matter was then considered by the Magistrates’ Commission.

After considering the judgment with the sanction of dismissal, the commissioners of the Magistrates’ Commission internally disagreed about whether to support the sanction of dismissal. Adv Moosa noted that 70 percent of the commissioners were of the view that the sanction should be supported. Some commissioners raised the concern that they did not want to support the findings on the charges because the sanction of removal from office was extremely harsh in the circumstances. The majority of the commissioners supported the dismissal.

On 17 March 2021, Judge Ledwaba (the Chairperson of the Magistrates’ Commission) wrote a letter to the Minister of Justice and Correctional Services, Mr Ronald Lamola, regarding the outcome of the disciplinary proceedings against Ms van Schalkwyk. The Minister considered the entire matter, and confirmed Ms van Schalkwyk’s suspension on 27 July 2021. In terms of section 13(4) of the Magistrates’ Act 90 of 1993, the report was submitted to Parliament for consideration. Ms van Schalkwyk then brought review proceedings with the three respondents to the matter being the Minister, the Magistrates’ Commission, and the presiding officer who issued the judgment with the sanction of dismissal. Adv Moosa pointed out that the review application should have been out of the Pretoria Local Division instead of the Johannesburg Local Division.

Despite the Minister being cited as the first respondent, no relief was sought against Mr Lamola. The only relief sought was from the Magistrates’ Commission and the presiding officer. This created an anomaly to the extent that the question was raised whether Parliament was then entitled to proceed in the absence of any relief being sought. There was nothing barring Parliament from proceeding with the matter as there was no relief being sought against the Minister, in terms of taking a decision on the recommendation from the Minister. On the other hand, having been faced with the review application, it might be the last attempt by Ms van Schalkwyk to ask for a review by the court. This matter had had a lengthy record, but it was trite that Ms van Schalkwyk had the right to take the matter for review despite systematic delays. One then had to apply one’s mind as to whether a postponement of these deliberations and proceedings would be justified in the circumstances and against that background that no relief was being sought against the Minister.

The Minister’s report and recommendation remained unchallenged in respect of the confirmation of suspension from office. The question then stood whether Parliament would want to proceed with the matter. He noted that it would be just, fair, and equitable in the circumstances to grant a postponement of the Committee’s deliberations pending the outcome of the review application by Ms van Schalkwyk.

He commented that Ms van Schalkwyk was five years away from retirement, and there was nothing that prevented her from applying to the Minister to allow her to go on an early retirement. The review application should be expedited and once the review was finalised, justice would have been done on all sides.

Discussion

The Chairperson noted that the Committee had received a letter from Ms van Schalkwyk’s attorneys who asked that the Committee stay the matter until the review application had been heard.

Mr W Horn (DA) thanked the Magistrates’ Commission for the information provided to the Committee. He noted that Members had received legal advice from the Parliamentary Legal Advisors, regarding a matter dealt with in 2017, which outlined that Parliament was under an obligation to finalise the matter when there was no court order preventing Parliament from doing so. This did not place the Committee under an obligation to deal with it on an urgent basis. Members would be hesitant to put this matter aside pending the review application. He asked for clarity on the practicalities that could ensure that the parties to the matter expedited the issues. The matters had been delayed by the COVID-19 pandemic, but there was a need for clarity on how long the review application would take. What was the likelihood of the application being finalised in a specific timeframe? The Committee must consider its duties and obligations regarding this matter to avoid a situation where it could be accused of dragging its feet while being under a constitutional obligation to finalise the matter.

Mr Q Dyantyi (ANC) noted Adv Moosa’s suggestion that unless the Committee was presented with more information and the facts of the matter, there would be no harm in awaiting the outcome of the review application. However, he was of the view that extraordinary facts or circumstances were necessary for the Committee to justify postponing the matter, given the lengthy time it had been on record.

Ms W Newhoudt-Druchen (ANC) asked for clarity on why the matter had been going on for eight years and cautioned against postponing the matter further, given the lengthy time this matter had been on record.

Ms N Maseko-Jele (ANC) commented that the integrity and constitutional obligations of the Committee were central to this matter. It was paramount that the government’s institutions be cleansed of misconduct.

The Chairperson noted that the absence of Ms van Schalkwyk as a magistrate led to more work for the other magistrates in the court, which created an unfair situation and placed a heavier burden on the staff.

Responses

Adv Moosa responded that there was nothing barring Parliament from proceeding with the matter as there was no relief being sought against the Minister, in terms of taking a decision on the recommendation from the Minister. He clarified his stance by saying that he suggested that it would be prudent to wait for the outcome of the review application. In terms of the time that the review proceedings would take, he stated that the Magistrates’ Commission would have to file an opposing affidavit and then a court date would be set. He noted that Ms van Schalkwyk was the Chief Magistrate of Kempton Park, and the post could not be filled until the matter of her dismissal was dealt with. The matter had been significantly delayed by Ms van Schalkwyk.

Mr Meijer gave a brief overview of why the matter had taken eight years to be finalised. Numerous allegations had been made against her.  After Ms van Schalkwyk was charged, she took the decision of the presiding officer on review to challenge the constitutionality of the Code of Conduct in the Regulations for Judicial Officers in the Lower Courts. The High Court dismissed her application with costs, and she then appealed to the full bench. This matter was also dismissed with costs, and then she approached the Supreme Court of Appeal which also dismissed her application. This process took four to eight years, and when the Supreme Court of Appeal’s judgment was reported, the Magistrates’ Commission commenced with the disciplinary inquiry.

Adv Moosa added that there was an Acting Chief Magistrate in the place of Ms van Schalkwyk, which had financial implications for government departments. He repeated his earlier concerns that the review application should have been out of the Pretoria Local Division instead of the Johannesburg Local Division. Despite the Minister being cited as the first respondent, no relief was sought against him. These two considerations must be duly considered by Members. There was nothing barring Parliament from proceeding with the matter as there was no relief being sought against the Minister, in terms of taking a decision on the recommendation from the Minister. On the other hand the review application might be the last attempt tby Ms van Schalkwyk. It might be more fair, just, and equitable to wait for the outcome of the review application. He noted that he would provide the Committee with a timeframe that a review application could take by 27 August 2021, the next day. However, there is nothing preventing Parliament from proceeding with the matter.

Mr Dyantyi suggested that Parliament, and by extension the Committee, continue with their actions after acting with caution for over eight years. There was a need to capacitate the Magistrates’ Commission to enable the body and its Ethics Division to fully deal with these matters without having to worry about resources. There was no reason to further delay this matter, and Parliament was under an obligation to finalise the matter when there was no court order preventing Parliament from doing so, as per the legal advice obtained.

Mr X Nqola (ANC) noted that it appeared that Ms van Schalkwyk had deliberately delayed the progress of this matter. This was unacceptable conduct from a judicial officer. He agreed with Mr Dyantyi that Parliament and the Committee should move forward as another postponement was not justifiable in the context of this matter.

Adv Moosa responded that there is no legal process that prevents the Committee from taking a decision and proceeding with the matter as it saw fit. Nothing was preventing Parliament from proceeding with the matter.

The Chairperson thanked Members and the delegation from the Magistrates’ Commission for their inputs during the meeting. He noted that the Committee had agreed to proceed on 9 September with this matter, after which it would be in the purview of the National Assembly.

The meeting was adjourned.
 

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