ATC130819: Report of the Select Committee on Security and Constitutional Development on the Provisional Suspension of Magistrate Ms J F Van Schalkwyk, Chief Magistrate at Kempton Park, dated 31 July 2013:
NCOP Security and Justice
Report of the Select Committee on Security and Constitutional
Development on the Provisional Suspension of Magistrate Ms
J F Van Schalkwyk,
Chief Magistrate at Kempton Park
, dated 31 July 2013:
The Select Committee on Security and
Constitutional Development, having considered the report of the Minister of
Justice and Constitutional Development on the provisional suspension of
Magistrate J F Van Schalkwyk
pending the outcome of an investigation into her fitness
to hold the office as a magistrate, as required by section 13(3)(b) of the
Magistrates Act, 1993 (Act 90 of 1993)
, reports as
follow
s:
1.
Background
Ms Van Schalkwyk is the Chief Magistrate and the
Judicial Head at Kempton Park. She was appointed to this position in 2004.
The allegations against Ms Van Schalkwyk are as
follows:
1.1
The Acting Chief Magistrate, Johannesburg (The
Chief Magistrate) and acting Cluster Head, Gauteng, lodged a formal complaint
with the Magistrates Commission as regards her refusal to execute a lawful
order. The tone of her written correspondence dated 20 March 2013 per e-mail to
the Chief Magistrate in this regard, is derogatory, disrespectful and
insulting, to both the Chief Magistrate and the Chief Justice. She furthermore
distributed the said correspondence to all and sundry in the Lower Courts
Judiciary.
1.2
That she severely abuses her power as judicial
head of the office, especially with reference to the magistrates under her
control by utilizing them inter
alia
for
non- official purposes, like work on behalf of JOASA, a professional society
for magistrates; to complete application forms for loans with micro lenders and
chauffeuring her with their private motor vehicles to and from the office to
her residence, the airport and other places.
1.3
That she requires magistrates under her control to
attend to her personal matters during official hours, including court hours, to
the detriment of the court and case flow management. She has inter
alia
instructed a magistrate on contract
to do her hair on several occasions.
1.4
That she gambled during official hours and
requested one of her magistrates to take her to Emperors Palace one morning at
approximately 10:00.
1.5
That she frequently borrows money from
subordinates, and that she does not always return the borrowed money.
1.6
That she borrowed and received on regular basis
money from attorney Mr Moloi who deals with her court house in an official
legal capacity.
1.7
That during November 2012 she obtained a large
amount of money shortly before her departure to Washington from the said Mr
Moloi, who also funded her travel and accommodation costs.
1.8
That 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 the said sheriff.
1.9
That during 2010/2011 she presided over a criminal
matter where the accused was represented by the said Mr Moloi from which she
obtained money.
1.10
That
during January/February 2013 she defeated the ends of justice and made
misrepresentations to the Judge President, Gauteng during her stint as an
Acting Judge in that she handed down judgements which were not written by
herself, but by magistrates under her control, and on occasion by an attorney.
These judgments were furthermore prepared prior to hearing arguments of
counsel.
1.11
That
she took magistrates out of court during official court hours to attend to her
personal matters knowing well that they had partly heard matters. These
resulted in the postponement of the matters whereby she acted to the detriment
of the discipline and efficiency of the administration of justice.
1.12
That
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 whereas in the spirit of transparency,
objectivity and fairness a magistrate from another office should have presided
over the matter.
1.13
That
her tone of voice used towards the Regional Court President, Gauteng was not
befitting a judicial officer. Similarly, she displayed unprofessional conduct
at a recent meeting of the Lower Courts Remuneration Committee held at the
offices of the Magistrates Commission in Pretoria.
1.14
That
her conduct and tone of her written correspondence to the Chief Magistrate,
that was sent to all and sundry in the Lower Courts Judiciary, brought the
Chief Magistrates Forum into disrepute.
1.15
That she is implicated in respect of
irregularities at the civil section of Kempton Park Magistrates Office,
specifically concerning the issuing of applications in terms of section 58 of
the Magistrates Courts Act.
2.
Minister of Justice and Constitutional
Developments recommendation
In terms of the disciplinary procedure the
Magistrates Commission informed Ms Van Schalkwyk in writing on 23 April 2013
and afforded her an opportunity to comment on the desirability of the
provisional suspension.
Ms Van Schalkwyk responded in writing on 02
May 2013.
The Executive Committee of the Magistrates
Commission met on 11 May 2013 and considered Ms Van Schalkwyks response dated
02 May 2013. The Commission resolved to recommend that Ms Van Schalkwyk be
provisionally suspended from office in terms of section 13(3)(a) of the
Magistrates Act, 1993, pending the investigation into her fitness to hold
office.
2.1
The
Commission considered the following issues:
i
The
severity and alleged continuation of the abuse of her power as judicial head of
the office, especially with reference to the magistrates under her control;
ii
That
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;
iii
The fact that the allegations are based on several
sworn statements;
iv
Ms Van Schalkwyk was given a written request not
to communicate with any members of the administrative support staff,
prosecuting authority or any magistrate attached to her court house with regard
to the allegations against her and not to interfere directly or indirectly with
the pending investigation instituted against her. Administrative staff, who
initially indicated their willingness to furnish the Commission with statements
in respect of complaints against Ms Van Schalkwyk, are not prepared to do so at
this stage indicates this written request was ignored;
v
That
although Ms Van Schalkwyk denies ever having presided over a criminal matter in
which Mr Moloi was the legal representative for the accused during 2010/2011,
the record of proceedings in this particular matter indicates the contrary;
vi
The allegations against Ms Van Schalkwyk are of a
serious nature as to make it inappropriate for her to perform her functions as
a magistrate, particular as judicial head of office while the allegations are
being investigated;
vii
Three senior judicial officers have already been
appointed to conduct an investigation into all allegations against Ms Van
Schalkwyk;
viii
Fear of intimidation and or victimization of
possible witnesses is not excluded if she is to remain at the office whilst the
investigation is pending.
2.2
Recommendation
of the Commission to the Minister of Justice and Constitutional Development
i
The
Commission were of the view that the allegations against Ms Van Schalkwyk were
of such a serious nature as to make it inappropriate for her to perform the
functions of a magistrate while the allegations were being investigated.
2.3
Ministers decision to provisionally suspend Ms Van
Schalkwyk
The Minister concurred with the
recommendation from the Magistrate Commission and in terms of section 13(3)(a)
of the Magistrates Act, No. 90 of 1993 the Minister, on the advice of the
Magistrates Commission, may provisionally suspend a magistrate from office if-
a.
the Commission,
after affording the magistrate a reasonable opportunity to be heard regarding
the desirability of such provisional suspension, is satisfied that reliable
evidence exists indicating that an allegation against that magistrate is of
such a serious nature as to make it inappropriate for the magistrate to perform
the functions of a magistrate while allegations is being investigated; and
b.
an investigation has
been instituted by the Commission into such magistrates fitness to hold
office.
3.
Recommendation
3.1
Having
considered the Magistrate Commissions report and the Minister of Justice and
Constitutional Developments recommendation, the Committee concurs with the
Ministers provisional suspension of Magistrate Ms J F Van Schalkwyk and
recommends that the
National Council of Provinces confirms the provisional suspension from office
of Magistrate of Ms J F Van Schalkwyk.
Report to be
considered.
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