Removal of Magistrate: Magistrate Commission briefing

NCOP Security and Justice

08 September 2021
Chairperson: Ms S Shaikh (ANC, Limpopo)
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Meeting Summary

Video

At a virtual meeting, the Committee convened to be briefed by the Magistrates’ Commission on the Report dated 27 July 2021, for the removal from office of Ms Judy van Schalkwyk (Chief Magistrate of Kempton Park, Johannesburg) in terms of section 13(4)(b) of the Magistrates Act 90 of 1993.

Briefing by the Magistrates’ Commission on Ms van Schalkwyk’s removal from office: The Chief Magistrate of Kempton Park in Johannesburg, Ms Judy van Schalkwyk, was charged for misconduct and was previously suspended from her office on 04 June 2013, pending a full inquiry into her fitness to hold office as a magistrate, approximately eight years ago. The Magistrates’ Commission then appeared before the Committee to request that Ms Schalkwyk’s remuneration be provisionally withheld, and the request was acceded to on 02 October 2018. On 17 March 2021, Judge Ledwaba (the Chairperson of the Magistrates’ Commission) wrote a letter to the Minister of Justice and Correctional Service, Mr Ronald Lamola, 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 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. The Magistrates’ Commission proposed that the recommendation from the Minister for the removal of Ms Schalkwyk from office be accepted by the Committee.

It was indicated that the Committee will make a decision on the matter during a future meeting after Members have considered all the facts before them.

Meeting report

The Chairperson convened the virtual meeting and welcomed Members and the delegation from the Magistrates’ Commission that consisted of Adv Cassim Moosa (the Chairperson of the Ethics Committee), and Mr Johannes Meijer (Member of the Magistrates’ Commission).

The purpose of the meeting was for the Committee to be briefed by the Magistrates’ Commission on the Report dated 27 July 2021, for the removal from office of Ms Judy van Schalkwyk (Chief Magistrate of Kempton Park, Johannesburg) in terms of section 13(4)(b) of the Magistrates Act 90 of 1993.

The Chairperson stated that the Committee received a legal opinion that Parliament should proceed with the matter of the removal from office of Ms JF van Schalkwyk, the Chief Magistrate of Kempton Park in Johannesburg in terms of section 13(4)(b) of the Magistrates Act 90 of 1993. She noted that Ms van Schalkwyk has been previously suspended from her position as a judicial officer in 2013, and Parliament subsequently decided to withhold her remuneration. The Committee will be briefed by the Magistrates’ Commission on its recommendation to remove Ms van Schalkwyk from her office on the grounds of misconduct in terms of the Magistrates Act. The Minister of Justice and Correctional Services has confirmed and tabled the Report in terms of section 13 of the Magistrates Act. The role of the Committee is to receive the briefing on the Report and after Members have concluded their deliberation, to decide whether or not to restore Ms van Schalkwyk to officer or to enforce her removal. The Committee also received a letter from Ms van Schalkwyk’s lawyers informing Members that she has instituted review proceedings. This letter also included a request that the Committee stay the matter until the outcome of the review application.

Briefing by the Magistrates’ Commission on Ms van Schalkwyk’s removal from office

Adv Cassim Moosa, the Chairperson of the Ethics Committee, presented the briefing to Members.

Overview of the disciplinary matter and progress made:

It was reported that the Chief Magistrate of Kempton Park in Johannesburg, Ms van Schalkwyk, was charged with 24 counts of misconduct and was previously suspended from her office on 04 June 2013, pending a full inquiry into her fitness to hold office as a magistrate, approximately eight years ago. The Magistrates’ Commission then appeared before the Committee to request that Ms Schalkwyk’s remuneration be provisionally withheld, and the request was acceded to on 02 October 2018. Ms van Schalkwyk also filed a written objection with the Magistrates’ Commission against the appointment of the person leading the evidence. She also proceeded to delay the process quite substantially for over eight years up to now.

Throughout the last eight years, Ms van Schalkwyk relentlessly litigated against the Magistrates’ Commission and its due processes, and she was unsuccessful at all material times. The cost orders granted against Ms van Schalkwyk remains outstanding. At the end, Ms van Schalkwyk was only convicted of 13 out of the 24 counts of misconduct. 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 whether to support the sanction of dismissal. He noted that 70% 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 Service, Mr Ronald Lamola, 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 section 13(4) 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 issued the judgment with the sanction of dismissal. However, the Minister’s recommendation for removing Ms van Schalkwyk from office stands, despite the review proceedings instituted by Ms van Schalkwyk.

He 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 is sought against Mr Lamola. The only relief that is sought is from the Magistrates’ Commission and the presiding officer. This creates an anomaly to the extent that the question is raised whether Parliament is then entitled to proceed in the absence of any relief being sought. There is nothing barring Parliament from proceeding with the matter as there is 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 has had a lengthy record, but it is trite that Ms van Schalkwyk has the right to take the matter for review despite systematic delays. One then has 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 as to whether the fact that there is no relief being sought against the Minister. He concluded that there is nothing barring the Committee from deliberating on and finalising the matter as per the recommendation by the Minister. He respectfully submitted that the matter should proceed in the absence of an interdict. He proposed that the recommendation from the Minister for the removal of Ms Schalkwyk from office be accepted.

Discussion

The Chairperson noted that the matter before the Committee has been a long-standing matter, and the Committee has raised the extensive delays in its finalisation during its previous meetings. She noted that the Committee should give appropriate weight to the legal opinion that there is nothing preventing Parliament to continue proceeding on the matter and bring it to finalisation by accepting the Minister’s recommendation.

Mr G Michalakis (DA, Free State) thanked the Magistrates’ Commission for the hard work put in towards the finalisation of this matter. He agreed with the proposal to accept the Minister’s recommendation. He asked for clarity on the timeframes in which the review applications will be concluded.

Adv Moosa responded that there is no indication on when the review proceedings would be concluded, but there is an intention to fast-track the review application. It is likely that it would only be heard next year. He commented that Ms van Schalkwyk is five years away from retirement, and there is nothing that prevents 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 is finalised, justice would have been done on all sides. However, the history of the matter shows the deliberate systemic delays caused by Ms van Schalkwyk.

The Chairperson noted that the Committee will make a decision on the matter during a future meeting after Members have considered all the facts before them.

The meeting was adjourned.

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