The Gauteng High Court in Johannesburg has ordered the Magistrates Commission to reconsider the sanction that led to the removal of Kempton Park Chief Magistrate Judith van Schalkwyk from office.
Judgment reopens sanction after earlier rulings
A full bench led by Judge Leicester Adams, with two judges concurring, arrived at the decision after an appeal of an earlier judgment by Judge Leonard Twala. Van Schalkwyk was originally found guilty on 13 disciplinary charges and removed from office in 2022. In 2024, Judge Twala set aside findings on nine of the 13 charges but found that four remaining charges were serious enough to warrant removal.
Judge Adams held that if numerous guilty findings are subsequently set aside, the sanction imposed on the basis of the original set of findings must at least be remitted to the decision-maker for reconsideration. He said the issue of sanction should have been referred back to the commission rather than upheld in full.
"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,"
Adams also found that Judge Twala had "misdirected" himself, had not properly exercised his discretion and had not taken into account a debate among commission members about the appropriate sanction. Some commission members had suggested demotion rather than removal, the judgment records.
What the remaining charges were
The four charges Judge Twala retained as supporting removal related to alleged rude and disrespectful conduct towards colleagues, accepting R34,000 from a local attorney to attend a conference in the United States, and failing to pay for parking at court. The full bench did not overturn findings on those charges in its ruling, but held that the commission must now reassess the sanction in light of the earlier set-aside findings.
| Item | Details |
|---|---|
| Original misconduct findings | 13 charges – guilty |
| Set aside by Judge Twala (2024) | 9 charges |
| Remaining charges | 4 charges (rudeness to colleagues; R34,000 acceptance; parking unpaid) |
| Sanction imposed | Removal from office (2022) |
Legal reasoning and implications
Judge Adams criticised the earlier approach for failing to account for internal disagreement at the commission and for not properly exercising judicial discretion on sanction. He described Twala's handling as an "error in law" and said the proper remedy was to send the sanction back to the commission for reconsideration.
The judgment underscores a legal principle familiar in administrative and disciplinary law: where multiple findings support a single sanction, and some findings are set aside on review, the proportionality and appropriateness of the sanction must be reassessed.
Procedural history and next steps
The case has been ongoing for nearly 11 years, the court noted. After the full bench's order, the Magistrates Commission will have to revisit the penalty it imposed on Van Schalkwyk. The commission previously considered alternatives, including demotion, according to the judgment.
- Who decides next: the Magistrates Commission is to reconsider the sanction.
- What remains in place: findings on four charges were not overturned by the full bench.
- Legal consequence: the removal has been set aside to the extent that the sanction decision must be revisited.
Local impact
The ruling has immediate consequences for the magistracy in Kempton Park and is likely to prompt scrutiny of how disciplinary processes are handled within the magistrates' service. For court users and staff who deal with the Kempton Park magistrate's office daily, the outcome will determine whether Van Schalkwyk is reinstated, demoted or subjected to a different penalty.
Beyond Kempton Park, the judgment may influence how commissions and courts approach sanctions in disciplinary matters where multiple charges and mixed outcomes on review exist. It reiterates the need for decision-makers to reassess penalties when the basis for those penalties has materially changed.
The matter will return to the administrative arena in due course when the Magistrates Commission reconsiders its sanction.
