26 March 2024
The Gauteng High Court has upheld a decision by the Magistrates Commission against Kempton Park chief magistrate Judith van Schalkwyk. Graphic: Lisa Nelson
Kempton Park Chief Magistrate Judith van Schalkwyk, who was fired after being found guilty of rude and threatening behaviour and of taking money from an attorney to travel to Washington, has failed in her bid to review and set aside the Magistrates Commission recommendation to the National Assembly that she be removed from office.
Earlier this month, Johannesburg High Court Judge Leonard Twala ruled that while some of the 24 charges for which she was found guilty by the commission should be set aside, the remaining four charges were serious enough to warrant her dismissal.
One was her conduct towards colleagues. The commission said she had told one his decision “sucked”, wrote on a charge sheet about another,“have you finally lost your marbles”, and told another colleague “If I could throw you through the wall…”.
Another charge related to a rude, disrespectful email she sent to the Chief Magistrate of Johannesburg, Gert Jonker.
She also took R34,000 from a local attorney to fund a trip she wanted to go on to the United States for an International Association of Judges Conference after her official request for funding was denied.
The final charge was that she had not paid for parking at the court.
Her case is one of several cited by the commission in Parliament of magistrates who used “every trick in the book” to delay proceedings against them. Another such case cited by the Commission in 2017 was that of Mziwonke Hinxa, the Chief Magistrate of Bloemfontein, who was found guilty by the commission of raping a woman he had offered to help with a case against her ex-husband.
Van Schalkwyk was first suspended in 2013 and finally removed from office in 2022, claimed in her review application that the decision to charge her was based on “ulterior motive”, and that there was only one complaint before the commission which had then gone to “poke around”, even accessing her bank statements, to build a case against her.
Judge Twala, in his ruling, said there was no basis for her complaints. The law allowed the commission to conduct a broad investigation if it came across complaints of misconduct during its inquiries. She had failed to demonstrate any “ulterior motive” for the investigation or recommendation that she be dismissed.
Judge Twala said the commission had lawfully obtained her bank statements from her work computer. They were relevant to the charges and the commission was justified in obtaining them.
Van Schalkwyk had argued that while she had been convicted of 13 counts of misconduct, the commission had now conceded that nine should be set aside. She said this meant that the sanction should also be reviewed.
But Judge Twala said given the gravity and seriousness of the remaining charges, “there is no doubt that they warrant the removal of the applicant from the magistracy”.
“No purpose would be served by referring the issue of sanction back to the presiding officer for reconsideration when, inevitably, this will bring the same results.”
“The misconduct for which the applicant was convicted is sufficiently serious to have the potential to undermine the administration of justice and the rule of law. The inescapable conclusion therefore is that the sanction to remove the applicant from the magistracy is justified under the circumstances,” he said dismissing the review on the four counts and ordering van Schalkwyk to pay the costs of the application.
Mziwonke Hinxa was suspended in 2017 after a disciplinary hearing. In the hearing, it emerged that he had given the commission a fake statement purportedly made by the woman that he had raped, stating that a firm of attorneys had paid her R100,000 to implicate him. The woman denied making it, her name was spelt incorrectly and her birth date was wrong. A handwriting expert concluded that the statement had in fact been written by someone who had resigned as a prosecutor to take up an acting magistrate’s post, approved by Hinxa.
On 14 March 2024, the National Assembly adopted a report of the portfolio committee confirming his removal from office.
He has now applied for a review, saying that he was not given a fair chance to give his version of the story and that commission ignored evidence that he was not in Bloemfontein at the time of the rape and was, in fact, appearing in court in Willowvale on a personal matter.
The application is pending before the Bloemfontein High Court.