Van Schalkwyk v Minister of Justice and Constitutional Development and Others (24910/2021) [2024] ZAGPJHC 300; [2024] 6 BLLR 640 (GJ) (19 March 2024)

FLYNOTES: PROFESSION – Magistrate – Misconduct – Review proceedings to set aside decisions that recommended applicant’s removal – No merit in contention that charges were brought for ulterior purpose – Disingenuous of applicant to interpret Act and its Regulations to mean that investigators

should only investigate what they have been tasked to investigate – Several charges reviewed and set aside – Remaining four charges of misconduct warrant removal of applicant from magistracy – Sufficiently serious to have potential to undermine administration of justice and rule of law – Magistrates Act 90 of 1993, s 13 and reg 26.

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

Case Number: 24910/2021

1. REPORTABLE: No

2. OF INTEREST TO OTHER JUDGES: No

3. REVISED: YES

In the matter between:

JUDITH

FREDA VAN SCHALKWYK APPLICANT

and

THE MINISTER OF

JUSTICE AND CONSTITUTIONAL

DEVELOPMENT FIRST

RESPONDENT

THE

MAGISTRATE COMMISSION SECOND

RESPONDENT

ANAND

MAHARAJ N.O THIRD

RESPONDENT

PARLIAMENT OF THE

REPUBLIC

OF

SOUTH

AFRICA FOURTH

RESPONDENT

JUDGMENT

TWALA J

[1] For the sake of convenience I propose to refer to the parties herein as they were referred to in the main application. Furthermore,

this Court directed that this matter be determined on the papers without an oral hearing, as provided for in the Gauteng Division

Consolidated Directives; re Court Operations during the National State of Disaster issued by the Judge President of this Division on the 18th of September 2020.

[2] The applicant brought this application for leave to appeal against the whole of the judgment and order of this Court handed down electronically on 19 March 2024. The application is opposed by the first to the third respondent.

[3] At the outset, I would like to express my gratitude to both counsels for the applicant and the respondents for the concise heads of argument and submissions made therein which have been more than helpful in determining the issues in this application.

[4] It is a trite principle of our law that leave to appeal may only be given where the Judge or Judges concerned are of the opinion that the appeal would have a reasonable prospect of success or where there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.[1]

[5] The grounds for the leave to appeal are succinctly stated in the notice of application for leave to appeal and I do not intend to repeat them in this judgment.

[6] I am satisfied that I have covered and considered all the issues raised in the application for leave to appeal in my judgment. I am therefore not persuaded by the applicant that there are reasonable prospects of success in this appeal. Put differently, I am of the view that there is no prospect that another Court would come to a different conclusion in this case. Therefore, the application for leave to appeal the judgment falls to be dismissed.

TWALA

M L

JUDGE OF THE HIGH COURT,

SOUTH

AFRICA

GAUTENG

LOCAL DIVISION

Date of Hearing:

Written submissions filed 10 May 2024

Date of Judgment:

16 May 2024

Appearances

For the Applicant:

Advocate Feroze Boda SC

Advocate Suhail Mohammed

Instructed by:

Dockrat inc. Attorneys

Tel: 011 618 2247

Email: yusuf@dockrat.co.za

For the First,second

And third Respondents: Advocate Timothy Bruinders SC

Advocate Nadia Badat

Instructed by:

The State Attorney

Tel: 011 330 7787

Email: Charles.thamaga@gmail.com

mmthamaga@justice.gov.za

For the Fourth Respondent: Advocate Lizzie Baloyi-Mere SC

Tel: 021 441 9277

Email: nhendricks2@justice.gov.za

alschreuder@justice.gov.za

This judgment and order was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the order is deemed to be the 16 May 2024.

[1] See section 17 (1)(a)(i) and (ii) of the Superior Courts Act, 10 of 2013