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ATC211110: Report of the Select Committee on Security and Justice on the Report dated 27 July 2021, for the removal from office of Ms J F van Schalkwyk, Chief Magistrate, Sub-Cluster Head, Kempton Park, Johannesburg in terms of section 13(4)(b) of the Magistrates Act, 1993 (Act No 90 of 1993), dated 10 November 2021

NCOP Security and Justice

Report of the Select Committee on Security and Justice on the Report dated 27 July 2021, for the removal from office of Ms J F van Schalkwyk, Chief Magistrate, Sub-Cluster Head, Kempton Park, Johannesburg in terms of section 13(4)(b) of the Magistrates Act, 1993 (Act No 90 of 1993), dated 10 November 2021.

 

  1. Introduction

The Select Committee on Security and Justice, having considered the Magistrates Commission’s report dated 27 July 2021, as tabled by the Minister for Justice and Correctional Service, on their recommendation for the removal from office of Ms J F van Schalkwyk, Chief Magistrate, Sub-Cluster Head, Kempton Park, Johannesburg in terms of section 13(4)(b) of the Magistrates Act, 1993 (Act No 90 of 1993), reports as follows:

  1. Background
    1. The Magistrates Commission at its meeting held on 11 May 2013, agreed to provisionally suspend Ms Van Schalkwyk pending an investigation into her fitness to hold office as contemplated in terms of Section 13(3)(a) of the Magistrates Act, No 90 of 1993 (the Act). Parliament on 12 November 2013 confirmed Ms Van Schalkwyk's provisional suspension fromoffice.
    2. After a preliminary investigation, the Magistrates Commission charged Ms Van Schalkwyk with 24 counts of misconduct. Ms Van Schalkwyk’s attorney acknowledged receipt of the charge sheet on 01 August 2013 on her behalf. 
    3. The Commission on 18 September 2013 appointed a Presiding Officer (PO) and a Person to Lead the Evidence (PLE) at the hearing. 
    4. The defenseraised numerous points in limine and applications which were argued before the Presiding Officer on 06 October 2014.  Ms Van Schalkwyk's application wassuccessful in respect of one count. The Presiding Officer postponed the inquiry to 16 January 2015 for hearing on which date the defense again requested a postponement.  Although this was vigorously opposed by the PLE on behalf of the Commission, the matter was postponed to 23- 25 February 2015 for hearing.  The hearing did however not proceed on these days.
    5. A further postponement was requested by the defence since Ms Van Schalkwyk's mother had passed on.  The inquiry was postponed to 20 and 21 April 2015.  The defence on 15 April 2015 advised the PLE on behalf of the Commission that they were once again forced to apply for a postponement of the matter on 20 April 2015.  Ms Van Schalkwyk's legal representative indicated that he on 13 April 2015 received confirmation from the Public Service Association (PSA) that they would authorize for senior counsel to be briefed. Advocate J Cilliers (SC) was briefed but not able to proceed with the hearing on 20 April 2015, even if he would be placed in a position to prepare. The application for a further postponement was opposed. 
    6. The Presiding Officer requested both parties to file Heads of Argument in respect of the application for another postponement. The application was refused. Ms Van Schalkwyk's attorney thereafter recused himself which the person leading the evidence opposed. Ms Van Schalkwyk asked for a postponement to obtain legal representation which was also opposed. The Presiding Officer however granted the postponement and remanded the inquiry to3 June 2015, on which date Adv Cilliers, SC with instructing attorney P Rudman, were placed on record.
    7. Counsel indicated that the defence intends to challenge the validity of the Regulations for Judicial Officers in the Lower Courts, No R361 of 11 March 1994 but that he had to take final instructions thereon.  The inquiry was postponed to 30 October 2015 for the defense to file a Motion Application to the High Court, inter alia, to seek a Declaratory Order challenging the validity of the promulgated Regulations and the Code of Conduct for Magistrates.  The State Attorney was instructed to oppose the application.

 

  1. High Court Application
    1. The Applicants on 14 August 2015 obtained a High Court order compelling the Minister and the Secretary of the Magistrates Commission, respectively the first and third Respondents in the matter, to provide the Applicants with any information relating to, including copies of any recommendations by the Commission to the Minister in terms of section 16 of the Magistrates Act, 90 of 1993 relating to the promulgation of the Regulations for Judicial Officers in the Lower Courts and the Code of Conduct for Magistrates.
    2. The High Court on 01 August 2017 delivered judgment dismissing the Applicants’ application with costs.  The Applicants filed a Notice of Application for leave to appeal to either a full bench of the High Court or the Supreme Court of Appeal (SCA) on 29 August 2017.  Having heard both parties on 08 November 2017 the High Court on 10 November 2017 dismissed the Applicants' application with costs. The Applicants there after petitioned to the Supreme Court of Appeal (SCA). The SCA on 18 March 2018 dismissed the Applicants’ application for leave to appeal with costs.
    3. The Commission thereafter instructed the PLE to set the misconduct inquiry down for hearing and was set to continue on 14 April 2018 but, at the request of Ms Van Schalkwyk’s attorneys, was postponed to 03-06 July and 09-11 July 2018 for hearing.

 

  1. Magistrates Commission’s Determination to withhold remuneration
    1. On 27 October 2017 Ms Van Schalkwyk was, in compliance with the rules of natural justice, invited to show cause why the Commission should not determine to withhold her remuneration forthwith.  A letter in this regard was served on her on 01 November 2017.  
    2. Having regard to the fact that it is evident that Van Schalkwyk deliberately delayed the continuation of the disciplinary process against her and the serious nature of this misconduct charges preferred against her, the Commission, at its meeting held on 24 November 2017, determined to withhold Ms Van Schlakwyk's remuneration in terms of Section 13(4A)(a) of the Act, pending the conclusion of the disciplinary inquiry against her with immediate effect.
    3. In 2018, Parliament confirmed the Minister’s decision to withhold her remuneration.

 

  1. Magistrates Commission recommendation for removal from Office
    1. The PO is of the view that taking the seriousness of the charges of which she is found guilty holistically and in its totality, Ms Van Schalkwyk is not fit to hold the office of Magistrate any longer therefore recommending her removal from office. The undisputed fact that she borrowed monies from a local attorney, who frequently appeared at the Kempton Park Magistrates Court, to pay for her overseas trip, on its own, justifies her removal from office.
    2. The Magistrates Commission having considered all the relevant documentation, as is required in terms of Regulation 26(19), including Ms Van Schalkwyk’s representations, the Commission resolved to recommend that Ms Van Schalkwyk be removed from office on the ground of misconduct as contemplated in terms of section 13(4)(a)(i) of the Magistrates Act. The Magistrates Commission finds Ms Van Schalkwyk’s conduct as set out in the charge sheet of which she was found guilty so serious that it justifies her removal from office. Her conduct renders her unfit to hold the office of Magistrate any longer.

 

  1. Legal position
    1. The Minister, in terms of Section 13(4)(a), of the Magistrates Act, if the Magistrates Commission recommends that a magistrate be removed from office on inter alia the basis of misconduct, must suspend that magistrate from office or, if the magistrate is provisionally suspended from office, confirm the suspension. A report in which such suspension and the reasons therefore are made known, must be tabled in Parliament by the Minister within fourteen (14) days of such suspension, if Parliament is then in session, or, if Parliament is not then in session, within fourteen (14) days after the commencement of its next ensuing session.
    2. Parliament must then as soon as is reasonably possible, pass a resolution as to whether or not the restoration of his/her office of the Magistrate so suspended is recommended.
    3. After a resolution has been passed by Parliament as contemplated in paragraph 2 above, the Minister shall restore the Magistrate concerned to his/her office or remove him/her from office, as the case may be.
    4. The Minister informed Parliament that Ms Van Schalkwyk instituted review proceedings. Her grounds for review are based on the decision of the 2nd (the Magistrates Commission) and 3rd Respondents (the Presiding Officer) in the misconduct proceedings. In paragraphs 58 to 60 of her affidavit she states that the presiding officer failed to consider appropriate alternative sanctions such as demotion and suspension and accordingly failed to apply his mind to the issue of sanction. If she is wrong in her interpretation and the sanction is indeed exhaustive of the type of sanction that may be imposed then she submits that Regulation 26(17)(a) must be set aside in terms of PAJA and or is unconstitutional and must be set aside as it deprives her of her constitutional right to equality, human dignity, and the freedom to carry out a trade and or must be set aside on the basis of the legality principle.
    5. A total number of 13 out of the 18 Commissioners, 70%, had supported the sanction of dismissal.
    6. The Minister in terms of section 13(4)(i) of the Magistrates Act, 1993, confirmed the suspension of Ms Van Schalkwyk and submitted the report in terms of section 13(4)(b) of the Magistrates Act, 1993 for Parliament’s consideration on 27 July 2021.

 

  1. Committee consideration
    1. The Committee met on 8 September 2021 to receive a briefing on the matter.
    2. The Chairperson drew members’ attention to the letter from Mrs Van Schalkwyk’s attorneys informing the Committee of her review proceedings and a request for the Committee to stay its decision pending the outcome of the review proceedings. The Chairperson further noted that a Parliamentary legal opinion was circulated to members that provided guidance on Parliament’s role in relation to the matter before the Committee.
    3. The Committee after considering the information presented, the request by Mrs Van Schalkwyk’s attorneys and the Parliamentary legal opinion indicated their support for the removal from office of Mrs Van Schalkwyk.

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  1. Committee recommendation to the NCOP for approval

The Select Committee on Security and Justice, having considered the Magistrates Commission’s report dated 27 July 2021, as tabled by the Minister for Justice and Correctional Services, on the suspension from office of Mrs JF Van Schalkwyk, Chief Magistrate, Sub-Cluster Head, Kempton Park, Johannesburg in terms of Section 13(4)(b) of the Magistrates Act, 1993, recommends that the National Council of Provinces does not restore Mrs JF Van Schalkwyk to the office of Magistrate.

 

Report to be considered.

 

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