Van Schalkwyk and the survival of a removal sanction
A removal justified by thirteen findings cannot stand, unchanged, on the four that remain.
The sanction must still match the findings that remain.
“A sanction stands only on the findings that remain.” From the note on Van Schalkwyk
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JASA · Judicial Officers Alliance of South Africa The Bench · Sixth Edition · October 2026
In Van Schalkwyk v Minister of Justice and Constitutional Development and Others [2026] ZAGPJHC, the High Court, sitting as an appeal court, set aside the removal of Judith van Schalkwyk, formerly Chief Magistrate at Kempton Park. Thirteen findings of misconduct had founded the recommendation of removal. On review, the respondents conceded that nine of those findings should fall away. Four remained.
Nothing in the case licences misconduct that has been proved. Four findings remained. The point is narrower. The President, the Minister and the Commission, when they act on a recommendation, act on a stated foundation. If that foundation is later reduced, the act must be looked at again. A charge that is not proved should not be left in the narrative of sanction “for context”. Reasons should separate each finding from the penalty, and should say which findings are essential to the penalty.
Members facing an inquiry are entitled to a charge sheet that can be answered, to a separation of roles, and to a sanction that matches what has been established. The signed judgment is not yet widely carried on a free reporter. This note follows the professional report of the appeal, and will be corrected if a particular in the signed text differs.
A note from Neelan Karikan. It may assist to list each finding that is upheld, and only those findings. If the foundation of a sanction changes, the sanction itself should be considered again.