Suspension of Magistrate Judith van Schalkwyk: briefing by Magistrates Commission; Implementation of the Domestic Violence Act; briefing by Committee Researcher

NCOP Security and Justice

29 July 2013
Chairperson: Mr T Mofokeng (Free State, ANC)
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Meeting Summary

Briefing on the suspension of Magistrate van Schalkwyk
The Magistrates Commission informed the Committee about the provisional suspension from office of Ms Judith van Schalkwyk, Chief Magistrate at Kempton Park, pending the outcome of an investigation into her fitness to hold the office as a magistrate. The allegations presented against her explained the range of misconduct she displayed whilst in office.  A letter dated 23 April 2013 was drafted to Ms Van Schalkwyk explaining the provisions of her suspension and she responded in writing on 2 May 2013. At its meeting held on 11 May 2013, the Executive Committee of the Commission considered her response and resolved to recommend that Ms van Schalkwyk be provisionally suspended from office in terms of section 13(3)(a) of the Magistrates Act, 1993.

Members were unclear about the documents presented, and requested clarification of what was being written and said. The Commission was providing contradictory information on the charges it wished to lay against Ms van Schalkwyk. They lacked proper documentation and had not received the written or verbal response by Ms van Schalkwyk. Members requested clarity on whether the Magistrate in question had been provisionally suspended with full remuneration. The Committee recommended that Parliament endorse the suspension of the Magistrate due to her irresponsible behaviour. The issue of provisionally suspending the Magistrate at Kempton could not be dealt with fully because they were not provided with the necessary documents.

Members requested that a Parliamentary Officer (PLO) be present at meetings and provide Members with the necessary documents. It was important that the administration of the Committee ensure that they receive all the pertinent documents required for the case and to also ensure that the PLO from the Department of Justice sat at the meetings.

Briefing Notes on the Report on the Implementation of the Domestic Violence Act
The Committee Researcher gave a briefing on the implementation of the Domestic Violence Act (DVA). The mandate of the Independent Police Investigative Directorate (IPID), which ensured the compliance of the South African Police Service (SAPS) with provisions of the Domestic Violence Act (DVA) had been transferred to the Civilian Secretariat, which would be responsible for the monitoring and evaluation of the DVA act. It was clear from oversight visit reports of the Police Portfolio Committee that SAPS had not fully implemented the provisions of the Act and faced compliance issues.

The non-compliance register/form (SAPS 508) had been found to have many errors due to the negligence of managers signing forms without acknowledging whether stations had complied with its provisions. The report highlighted the importance of other role players in the system, such as the National Prosecuting Authority (NPA), and their impact in ensuring victims had accessible legal tools in stopping domestic violence. Although the Act provided legal authority to domestic violence victims in ensuring that complaints could be filed at any time, it was found that the NPA was often unavailable and magistrates were unavailable after hours or weekends, hindering victims from being able to obtain protection orders.
The Portfolio Committee on Social Development was responsible for ensuring that shelters were available to those facing domestic violence challenges, but in many communities complaints had been filed about the absence of such shelters. In order to ensure effective reporting on domestic violence cases provincial secretariats needed to have the capacity to collect statistics on non-compliance throughout the country and ensure that all police stations within their jurisdictions were being monitored.
 

Meeting report

Briefing on the suspension of Magistrate Judith van Schalkwyk
Mr Johannes Meijer, Commission Secretary, Magistrate’s Commission, presented a report informing Parliament about the provisional suspension from office of Ms Judith van Schalkwyk, Chief Magistrate at Kempton Park, pending the outcome of an investigation into her fitness to hold the office as a magistrate. The preliminary investigations which were conducted the previous week had been completed, and the Commission was preparing a charge sheet to be sent to her by 2 July 2013.

The allegations presented against her explained the range of misconduct she displayed whilst in office. As Chief Magistrate at Kempton Park, Ms van Schalkwyk was said to have severely abused her powers as judicial head of the office, especially with reference to the magistrates under her control by utilizing them inter alia for non-official purposes. She required magistrates under her control to attend to her personal matters during official hours, including court hours, to the detriment of court and case flow management. She gambled during official hours and inter alia requested one of her magistrates to take her to Emperor’s Palace one morning at approximately 10:00. She frequently borrowed money from subordinates without payment. She borrowed and received money on a regular basis from attorney Mr Moloi, who dealt with her court house in an official legal capacity. During November 2012 she obtained a large amount of money shortly before her departure to Washington from Mr Moloi, who also funded her travel and accommodation costs. She took money from the local Sheriff and abused her position to assist him with an application to extend his area of jurisdiction, which ultimately would secure financial gain for her. During 2010/2011 she presided over a criminal matter where the accused was represented by Mr Moloi from who she obtained money. She took magistrates out of court during official court hours to attend to her personal matters. She appeared as an applicant in a debt review at Kempton Park Magistrates Court in case number 40552/2012 and requested an acting magistrate from her office to preside in the matter rather than appointing another magistrate. Her tone of voice used towards the Regional Court President, Gauteng was not befitting a judicial officer and her conduct and tone of her written correspondence to the Chief Magistrate was not professional.

A letter dated 23 April 2013 was drafted to Van Schalkwyk explaining the provisions of her suspension and she responded in writing on 2 May 2013. At its meeting held on 11 May 2013, the Executive Committee of the Commission considered her response and resolved to recommend that Van Schalkwyk be provisionally suspended from office in terms of section 13(3)(a) of the Magistrates Act, 1993.
 
Discussion

Members were unclear about the documents presented, and requested clarification of what was being written and said. Members indicated that the Commission was providing contradictory information on the charges it wished to lay against Van Schalkwyk. They also said they lacked proper documentation and had not received the written or verbal response by Van Schalkwyk said to be provided.

Mr Meijer answered that when the Magistrate’s Commission received complaints, based on the strength of said allegations the Commission may consider provisional suspension. The Commission gave the Magistrate the opportunity to appeal to her case which was done on 23 April 2013. The Commission, having considered her appeal, agreed to provisionally suspend the Magistrate but the decision had to be confirmed by Parliament.

Mr L Nzimande (ANC) said this was an ongoing matter that had been extended for a lengthy period of time and he wanted clarity on whether the Magistrate in question had been provisionally suspended with benefits. He proposed that Parliament endorse the suspension of the Magistrate due to her irresponsible behaviour.

Chairperson requested clarity on Mr Nzimande’s question of remuneration.

Mr Meijer replied that the issue of remuneration was dealt with by a different section of the Act. The Commission was not entitled to withhold remuneration irrespective of whether the Magistrate had been provisionally suspended from office or already suspended. It was only in exceptional circumstances that remuneration would be withheld, for example if a magistrate had been convicted of a criminal offence.

Members asked if Ms van Schalkwyk was suspended with full remuneration, and Mr Meijer confirmed that she was. Members said the issue of provisionally suspending the Magistrate could not be dealt with in scope because they were not provided with the needed documents.

The Chairperson said that the necessary documents would be provided to all the Members.

Mr Nzimande requested that a Parliamentary Officer (PLO) be present at meetings and provided Members with the necessary documents. He said it was important that the administration of the Committee ensured that they received all the pertinent documents necessary for the case of and that the PLO from the Department of Justice sat in on these meetings.

The Chairperson said that the Committee confirmed the provisional suspension of the Magistrate.

The Chairperson indicated that the Committee Researcher would brief the Committee on the Implementation of the Domestic Violence Act in preparation for the following day’s meeting.

Briefing Notes on the Report on the Implementation of the Domestic Violence Act
Ms Patricia Whittle, Committee Researcher, gave a briefing on the implementation of the Domestic Violence Act (DVA) and said that the mandate of the Independent Police Investigative Directorate (IPID), which ensured the compliance of the South African Police Service (SAPS) with provisions of the Domestic Violence Act (DVA), had been transferred to the Civilian Secretariat, who would be responsible for the monitoring and evaluation of the DVA. The Domestic Violence Act placed an obligation on SAPS to report to Parliament every 6 months with information pertaining to:

• The number and particulars of complaints received against its members in respect of an failure contemplated in subsection (4) (a);
• The disciplinary proceedings instituted as a result thereof and the decisions which emanated from such proceedings; and
• Steps taken as a result of recommendation made by the IPID.

It was clear from oversight visit reports of the Police Portfolio Committee that SAPS had not fully implemented the provisions of the Act and faced compliance issues. The challenges that were highlighted included the police force’s lack of quality practical training being provided to its students. Students commented on the lack of practical knowledge the trainings provided, which hindered their abilities in applying solutions to real life situations of domestic violence. During its last report (July 2011 to March 2012) The Independent Compliance Directorate (IDC) audited 107 police stations assessing their compliance with the DVA and found that:
 
• 9 stations were non-compliant (0-49%)
• 33 stations were fairly compliant (50-79%)
• 45 stations were substantially compliant (80-90%)
• 20 stations were fully complaint (100%)

During the period of January to March 2012, 55 police stations were audited and the findings were:
• 2 stations were non-compliant (0-49%)
• 18 stations were fairly compliant (50-79%)
• 28 stations were substantially compliant (80-90%)
• 7 stations were fully compliant (100%)

If the two reports were taken together for the period of July 2011 to March 2012, only 16 (7%) of 162 stations were fully compliant with the provisions of the DVA.

The non-compliance register/form (SAPS 508) had been found to have many errors due to the negligence of managers, who signed forms without acknowledging whether stations had complied with its provisions. The report highlighted the importance of other role players in the system such as the National Prosecuting Authority (NPA) and its impact in ensuring victims had accessible legal tools to stop domestic violence. Although the Act provided legal authority to domestic violence victims by ensuring that complaints could be filed at any time, it was found that the NPA was often unavailable and magistrates were unavailable after hours or on weekends, which hindered victims from being able to obtain protection orders.

The researcher suggested that it would be beneficial to have a joint meeting where all the role players were present to address how to eradicate the issue of domestic violence.

The Portfolio Committee on Social Development was responsible for ensuring that shelters were available to those facing domestic violence challenges, but in many communities complaints had been filed complaining of an absence of such shelters. In order to ensure effective reporting on domestic violence cases provincial secretariats needed to have the capacity to collect statistics on non-compliance throughout the country and ensure that all police stations within their jurisdictions were being monitored.

The Chairperson thanked the researcher.

The meeting was adjourned.
 

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