“Rude” magistrate’s impeachment set aside

The decision to remove Judith van Schalkwyk from office has been set aside by the Gauteng High Court. Illustration: Bronwyn Webb.

A magistrate who was impeached and removed from office has been thrown a lifeline by the Gauteng High Court in Johannesburg.

Kempton Park Chief Magistrate Judith van Schalkwyk was found guilty of 13 disciplinary charges and removed from office in 2022.

In 2024, Gauteng High Court Judge Leonard Twala ruled that nine of the charges should be set aside, but the remaining four charges were serious enough to warrant her removal from office. These related to rude and disrespectful conduct towards colleagues, and accepting R34,000 from a local attorney to attend a conference in the United States.

It was also found that she had not paid for parking at court.

Twala said the matter had been “dragging on for almost eleven years” and that referring the matter back to the misconduct inquiry’s president officer would inevitably “bring the same results”.

Van Schalkwyk appealed the ruling before a full bench.

Now, Judge Leicester Adams, with two judges concurring, have directed the Magistrates Commission to reconsider the sanction imposed on her.

“If a person is sanctioned on the basis of a finding that she is guilty of misconduct on thirteen charges and the finding of guilty in respect of nine of those charges are set aside, the sanction ought, at the very least, be remitted to the decision-maker for reconsideration, if it is not reduced,” said Adams in his judgment.

“It matters not that there may or may not be one charge in respect of which a finding of guilt remains, which is serious enough to in itself possibly warrant the sanction imposed,” he said.

Adams said Twala had “misdirected” himself, had not properly exercised his discretion, and had not taken into account that there was a debate between members of the commission when it considered the sanction. Some members suggested that Van Schalkwyk rather be demoted.

He said Twala made an “error in law” and should have referred the issue of sanction back to the commission.

However, Adams dismissed Van Schalkwyk’s appeal of Twala’s refusal to set aside the four misconduct charges.

Van Schalkwyk had argued that the charges were grounded in “ulterior motive” and bias.

But, as a general rule, Adams said, motive played very little if any part in South Africa’s legal adjudication process, and Van Schalkwyk had not provided any evidence of ulterior motive or bias.

Adams set aside all decisions relating to the sanction and her removal from office and directed the commission to consider the matter afresh in relation to the remaining four charges. Government respondents were ordered to pay the costs of the application.

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