ATC180828: Report of the Portfolio Committee on Justice and Correctional Services on the withholding of remuneration of Ms JF van Schalkwyk, Chief Magistrate at Kempton Park, tabled in terms of section 13(4A)(b) of the Magistrates Act, 1993 (Act No. 90 of 1993), dated 28 August 2018

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the withholding of remuneration of Ms JF van Schalkwyk, Chief Magistrate at Kempton Park, tabled in terms of section 13(4A)(b) of the Magistrates Act, 1993 (Act No. 90 of 1993), dated 28 August 2018
 

The Portfolio Committee on Justice and Correctional Services, having considered the Minister of Justice and Correctional Services’ report dated 29 November 201 on the Magistrates Commission’s determination to withhold the remuneration of Ms JF van Schalkwyk, Chief Magistrate at Kempton Park, tabled in terms of section 13(4A)(b) of the Magistrates Act, 1993 (Act No 90 of 1993), reports as follows:

1. Ms JF van Schalkwyk is Chief Magistrate at Kempton Park. After a preliminary investigation, the Magistrates Commission (the Commission) charged Ms Van Schalkwyk with 18 counts of misconduct. The 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). The Minister provisionally suspended her from office on 4 June 2013. Parliament confirmed Ms Van Schalkwyk's provisional suspension from office in November 2013.

 

1. On 18 September 2013, the Commission appointed a Presiding Officer and a Person to Lead the Evidence (PLE) at the hearing, informing Ms van Schalkwyk in writing. The misconduct inquiry was postponed several times at the request of the defence and to allow the defence an opportunity to file an application at the High Court challenging the validity of the Regulations for Judicial Officers and the Code of Conduct for Magistrates and for the State to oppose same. The misconduct inquiry against Ms Van Schalkwyk was kept in abeyance pending the finalization of the application.

 

1. The application was heard on 15 March 2017 and judgment was reserved. On 1 August 2017, the High Court delivered its judgment and dismissed the application with costs.

 

1. The Applicant filed a Notice of Application for leave to appeal on 29 August 2017. Having heard both parties on 08 November 2017 the High Court dismissed the application with costs (on 10 November 2017).
2. Ms van Schalkwyk is still receiving the remuneration of a Chief Magistrate, whilst the disciplinary proceedings are pending against her. More than four (4) years have gone by and not a single piece of evidence has been placed before the disciplinary inquiry. The Person Leading Evidence has been requested, in consultation with the Presiding Officer at the misconduct inquiry, to set the inquiry down to continue without any further delay.

 

1. The Commission holds the view that Ms Van Schalkwyk is deliberately delaying the disciplinary process against her and that a determination by the Commission to withhold her remuneration is justified. In terms of Section 13(3)(f) of the Act, a misconduct inquiry against a magistrate must be concluded as soon as possible. It could never have been the intention of the Legislature to allow disciplinary inquiries against magistrates to be held in abeyance indefinitely.

 

1. 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. In her representations, she admitted "that the misconduct hearing is dependent on the outcome of the High Court cases" and that "the High Court cases have due process to be followed". Due process has been followed and the High Court dismissed her applications. The judgments in this regard are clear. Her representations not to withhold her remuneration therefore have no substance.

 

1. 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, determined to withhold Ms Van Schalkwyk's remuneration in terms of Section 13(4A)(a) of the Act with immediate effect, pending the conclusion of the disciplinary inquiry against her.

 

Recommendation

The Committee, having considered the Minister’s report on the Magistrates Commission’s determination to withhold the remuneration of Ms JF van Schalkwyk, Chief Magistrate at Kempton Park, tabled by the Minister for Justice and Correctional Services, in terms of section 13(4A)(b) of the Magistrates Act, 1993 (Act No. 90 of 1993), recommends that the National Assembly confirms the determination.

 

Report to be considered