Chief Magistrate’s Removal Set Aside After Nine Out Of 13 Misconduct Findings Fall Away

In the recent judgment of Van Schalkwyk v The Minister of Justice and Constitutional Development and Others [2026] ZAGPJHC, the High Court, sitting as an appeal court, overturned the removal of former Kempton Park Chief Magistrate Judith van Schalkwyk after finding that the sanction could not stand once the majority of the misconduct findings against her had fallen away.

At a glance

• In Van Schalkwyk v The Minister of Justice & Constitutional Development and Others [2026] ZAGPJHC the court dealt with whether a dismissal or removal sanction survive when most of the findings on which it was based no longer exist.
• The court found that the original recommendation to remove former Kempton Park Chief Magistrate Judith van Schalkwyk was based on the cumulative effect of all 13 misconduct findings.
• Once nine of those findings were overturned, the basis for the sanction had materially changed.

Van Schalkwyk was originally found guilty on 13 misconduct charges and was ultimately removed from office following recommendations by the presiding officer, the Magistrates Commission, the Minister of Justice and Constitutional Development (Minister), and Parliament. However, when she challenged the outcome on review, the respondents conceded that nine of those 13 findings should be set aside, leaving only four findings intact.

That raised a fundamental question: Can a dismissal or removal sanction survive when most of the findings on which it was based no longer exist? The court’s answer was no.

The court found that the original recommendation to remove Van Schalkwyk was based on the cumulative effect of all 13 misconduct findings. Once nine of those findings were overturned, the basis for the sanction had materially changed. The matter therefore had to be sent back to the Magistrates Commission to reconsider whether the remaining four charges justified removal from office.

In reaching this conclusion, the court criticised the court a quo for effectively deciding for itself that removal remained appropriate. The court reiterated that in accordance with the Promotion of Administrative Justice Act 3 of 2000, in judicial review proceedings, substitution of a decision is only permissible in exceptional cases. The court held that there was no special case made out before the court of first instance, warranting substitution.

As a result, not only was the removal recommendation set aside, but so too were the subsequent decisions that flowed from it, including the Magistrates Commission’s recommendation, the Minister’s referral to Parliament and Parliament’s decision to remove Van Schalkwyk from office.

Importantly, the court did not disturb the four remaining misconduct findings. Those convictions survived review and will form part of the Magistrates Commission’s reconsideration of the appropriate sanction.

Why this matters

The judgment serves as a reminder that sanctions must be linked to the misconduct findings that support them. Where a sanction is based on the cumulative effect of multiple charges, and a significant number of those charges are later overturned, the sanction itself may also need to be reconsidered.

For employers and disciplinary decision-makers, the case highlights the importance of clearly explaining why a particular sanction is appropriate relative to the charges and which findings are central to that conclusion.