IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
APPEAL CASE NO: A2024-112579
COURT A QUO CASE NO: 2021-24910
DATE: 11 AUGUST 2026
In the matter between:
JUDITH FREDA VAN SCHALKWYK Appellant
and
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT First Respondent
THE MAGISTRATES COMMISSION Second Respondent
ANAND MAHARAJ N O Third Respondent
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA Fourth Respondent
Neutral Citation: Van Schalkwyk v The Minister of Justice & Constitutional
Development and Others (A2024-112579) [2026] ZAGPJHC
--- (11 August 2026)
Coram: Mali et Adams JJ et Van Nieuwenhuizen AJ
Heard: 29 April 2026
Delivered: 11 August 2026 – This judgment was handed down electronically
by circulation to the parties' representatives via email, by being
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uploaded to CaseLines and by release to SAFLII. The date and time
for hand-down is deemed to be 10:30 on 11 August 2026.
Summary: Constitutional and administrative law – s 172 of the Constitution –
review in terms of s 6(2)(a)(iii), 6(2)(b), 6(2)(c), 6(2)(e)(ii), 6(2)(e)(iii) and 6(2)(f)(iii)
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) – the
administrator was biased – the action was procedurally unfair – the action was
taken for an ulterior purpose or motive – irrelevant considerations were taken into
account or relevant considerations were not considered – arbitrarily or
capriciously – the action itself was not rational – the exercise of the power or the
performance of the function so unreasonable that no reasonable person could
have so exercised the power or performed the function – review application also
based on the doctrine of legality – appeal against the dismissal of judicial review
application –
Appellant (a Chief Magistrate) – found guilty by the third respondent ( judicial
presiding officer in a misconduct hearing) of thirteen counts of misconduct – he
also recommended, in terms of s 26(17)(b) of the Regulations for Judicial Officers
in Lower Courts, 1994, that the appellant be removed from office as a Magistrate
as contemplated in s 13 of the Magistrates Act –
Appellant was found guilty by the presiding officer of thirteen counts of
misconduct – the guilty finding in respect of nine of those charges was set aside
on review –
Held by the Appeal Court that it follows that the sanction should also either fall
away or at the very least be reconsidered by the Magistrates Commission –
Substitution as a remedy in a judicial review application – to be granted in an
exceptional case – held that no such case made out in the court a quo –
Held that, as for the merits of the review application, the main enquiry before the
court is whether the presiding officer's decision is so unreasonable that no
court is whether the presiding officer's decision is so unreasonable that no
reasonable person could have reached it – no such case made out –
Appeal upheld in part – sanction reviewed, set aside and remitted to the
Commission.
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ORDER
On appeal from: The Gauteng Division of the High Court, Johannesburg
(Twala J sitting as Court of first instance):
(1) The appellant’s appeal against paragraph (2) of the order of the court a quo
dated 19 March 2024 is upheld, with costs.
(2) Paragraph (1) of the order of the court a quo dated 19 March 2024 is
confirmed.
(3) Paragraph (2) of the order of the court a quo dated 19 March 2024 is
reviewed, set aside and replaced with an order in the following terms: -
‘(2) The application to have reviewed and set aside the finding by the third
respondent dated 1 October 2020, that the applicant is guilty of misconduct as
per charges 3, 4, 17 and 20, is dismissed.
(3) The decision / finding by the third respondent dated 2 October 2020 to
recommend to the Magistrates Commission that the applicant be removed from
office as contemplated in section 13 of the Magistrates Act, is hereby reviewed,
set aside and remitted back to the Magistrates Commission for reconsideration.
(4) The decision / finding by the second respondent to recommend to the first
respondent that the applicant be removed from office as contemplated in section
13 of the Magistrates Act, is hereby reviewed, set aside and remitted back to
the Magistrates Commission for reconsideration.
(5) The decision / finding by the first respondent to recommend to Parliament that
the applicant be removed from office as contemplated in section 13 of the
Magistrates Act, is hereby reviewed, set aside and remitted back to the
Magistrates Commission for reconsideration.
(6) The decision by the fourth respondent (Parliament) dated 8 June 2022 ,
removing the applicant from office as contemplated in section 13 of the
Magistrates Act, is hereby reviewed, set aside and remitted back to the
Magistrates Commission for reconsideration.
(7) All other decisions made subsequent to the decision by the third respondent on
sanction, made pursuant to the decision to convict the applicant in respect of
sanction, made pursuant to the decision to convict the applicant in respect of
thirteen misconduct charges, is reviewed and set aside.
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(8) Each party shall bear her / his / its own costs of the applicant’s opposed review
application.’
(4) The first, second, third and fourth respondents, jointly and severally, the one
paying the other to be absolved, shall pay the appellant’s costs of the
appeal, including the costs of the application for leave to appeal to the court
a quo and the costs of the application for leave to appeal to the Supreme
Court of Appeal, all such costs to include the costs consequent upon the
employment of two Counsel, one being Senior Counsel (where so
employed), on scale ‘C’ of the tariff referred to in Uniform Rule of Court
67A(3), read with rule 69
JUDGMENT
Adams J (Mali J et Van Nieuwenhuizen AJ concurring):
[1] This matter arises from a written ruling – styled ‘judgment’ – dated
1 October 2020 by the third respondent, qua judicial presiding officer in a
misconduct hearing by the second respondent (Magistrates Commission) against
the appellant, in which she , as Chief Magistrate in Kempton Park, was charged
with and accused of misconduct in terms of Regulation 25 of the Regulations for
Judicial Officers in Lower Courts, 19941. After hearing the evidence and the
arguments at the said hearing, the third respondent concluded and made a
finding that the appellant was guilty of thirteen of the twenty -four charges
preferred against her. And in his ‘Sanction Judgment’ dated 2 October 2020, the
third respondent made a finding that it should be recommended to the
Magistrates Commission that the appellant be removed from office as
contemplated by s 13 of the Magistrates Act 90 of 1993 (Magistrates Act).
1 Regulations promulgated under and in terms of the Magistrates Act 90 of 1993.
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[2] Subsequently – on or about 17 March 2021 – the Magistrates Commission,
after consideration of the relevant documentation, agreed with the findings of the
third respondent and resolved to and in fact did recommend to the fourth
respondent (Parliament), via the first respondent (Minister of Justice), that the
appellant be removed from office as contemplated in s 13 of the Magistrates Act.
On 27 July 2021 the Minister referred the matter to Parliament for consideration.
[3] Aggrieved by the findings of the third respondent, as supported by the
Magistrates Commission, the appellant on 21 May 2021, launched a judicial
review application in this Division of the High Court, Johannesburg (the court a
quo). In the main, the relief sought by the appellant was for an order r eviewing
and setting aside the aforesaid findings and the recommendations in terms of
which she was found guilty of misconduct and a recommendation was made that
she be removed from office. Ancillary relief claimed was inter alia for orders:
(a) Reviewing and setting aside a resolution adopted by the executive committee
of the Magistrates Commission on 12 March 2021 in support of the findings by
the third respondent; and (b) Reviewing and setting aside the decision made by
Parliament on 8 June 2022, in terms of which it confirmed the removal from office
of the appellant.
[4] Importantly, as regards the sanction imposed by the third respondent, the
appellant prayed for an order reviewing and s etting same aside and substituting
the sanction by imposing a lesser one not involving removal from office.
[5] On 8 June 2022, s ubsequent to the filing by the appellant of the review
application, Parliament confirmed the appellant’s removal from office as a
Magistrate in terms of section 13(4) of the Magistrates Act. In an amended notice
of motion dated 16 November 2022 , the appellant accordingly also sought an
order reviewing and setting aside the said decision by Parliament removing her
from office.
order reviewing and setting aside the said decision by Parliament removing her
from office.
[6] The judicial review application was premised in the main on alleged
serious misdirections on the part of the third respondent in the evaluation of the
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evidence on the merits of the charges, as well as on the basis of irrationality and
unreasonableness of the findings and the sanction recommending removal from
office. The findings by the third respondent, so it was contended by the appellant,
are not findings and recommendations tha t a reasonable or rational presiding
officer would reach . The same applies, so the contention continued, to the
endorsement of the sanction by the Magistrates Commission. The review
application was accordingly in terms of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA) and on the basis of the doctrine of legality.
[7] It may be apposite at this juncture to list the charges in respect of which
the appellant was found guilty by the third respondent. As I have already
indicated, of the twenty-four charges initially preferred against her, the appellant
was found guilty only of the following thirteen counts against her: -
(a) Count 2 – On 09/02/2007 - Improper use of state vehicle;
(b) Count 3 – From 2009 to 04/06/2013 – Being rude, humiliating, belittling and
threatening to judicial and other officials;
(c) Count 4 – On 20/03/2013 – Being disrespectful to Chief Magistrate Jonker and the
Chief Justice of South Africa by disseminating to a number of members of the
Magistracy a derogatory email;
(d) Count 7 – During 2009 – Gambling during official hours at Emperors Palace ,
alternatively, absent from work without leave or valid cause;
(e) Count 9 – 2009 to 2013 – Asked Magistrate Da Silva to come out of court to do
her hair;
(f) Count 10 – During 2010 – Arranging a loan application for Magistrate Da Silva
without her consent;
(g) Count 11 – During October 2010 – Called Magistrate Da Silva out of court to apply
for an Eduloan for R34 000 to pay for her (the appellant’s) son’s university fees;
(h) Count 12 – During 2011 – Took Magistrate Da Silva out of court for five weeks to
do the Mozambican report;
(i) Count 14 – During June 2011 – Took Magistrate Da Silva out of court to deal with
(i) Count 14 – During June 2011 – Took Magistrate Da Silva out of court to deal with
JOASA matters – to call magistrates, to get support for special AGM and to email
them;
(j) Count 16 – On 12/2012 to 04.2013 – Took Magistrate Da Silva to assist with IAJ
conference and take her to meetings at Emperors Palace, Carnival City and ACSA;
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(k) Count 17 – On 10/11/2012 – Requested Attorney Moloi to pay for travel expenses
to Washington DC or collecting cash from him using Magistrate Da Silva;
(l) Count 20 – During 2005 to 04/06/2013 – Made use of official parking at Kempton
Park without paying; and
(m) Count 22 – On 18/03/2013 – Failing to comply with a lawful order of Chief
Magistrate Jonker in submitting daily returns.
[8] The review application in the court a quo was opposed by all four of the
respondents, namely the Minister, the judicial presiding officer, the Magistrates
Commission and Parliament , with the Commission taking the lead in opposing
the application. In its answering affidavit in opposition to the appellant’s
application, the Magistrates Commission did however indicate unequivocally that
they do not oppose the application to set aside the findings of guilty in relation to
charges 2, 7, 9, 10, 11, 12, 14, 16 and 22 . That left remaining and alive the
findings of guilty relative to charges 3, 4, 17 and 20 above . The respondents
oppose the review application in relation to the findings of guilty in regard to these
four charges.
[9] The appellant, as indicated above, also asked for a review of the sanction
imposed by the third respondent – this part of the review application took on
particular and special importance for the appellant in view of the fact that by the
time the judicial review application was heard in the high court, the guilty findings
had in effect been reduced from thirteen to four. Axiomatically, so the contention
on behalf of the appellant went, the sanction should be reviewed and set aside
or at the very least be referred back to the Magistrates Commission for
reconsideration.
[10] The contentions by the respondents found favour with the court a quo (per
Twala J) and those on behalf of the appellant did not. On 19 March 2024, Twala J
granted the following order: -
‘(1) The application to review and set aside in respect of counts 2, 7, 9, 10, 11, 12, 14
and 16 is granted.
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(2) The application to the review and set aside counts 3 , 4, 17 and 20 is dismissed
with costs, including costs for the employment of two counsel.’
[11] There appears to be an error in the aforesaid order in that misconduct
charge 22, relating to the appellant’s failure to comply with a lawful order of Chief
Magistrate Jonker in submitting daily returns , was not dealt with in the order.
However, if regard is had to the evidence before the court a quo , it can and
should, in my view, safely be accepted that that charge was to form part of
paragraph (1) of the said order. I will therefore proceed on the assumption that
paragraph (1) includes a reference to the aforementioned charge 22.
[12] The appellant sought leave to appeal against prayer (2) of the order of the
court a quo, which refused leave to appeal. However, on 5 September 2024 the
appellant was granted leave to appeal on petition to the Supreme Court of
Appeal. In essence, this appeal concerns the rationality and the legality of the
findings by the third respondent and whether the court a quo in confirming the
sanction imposed was correct.
[13] In this Full Court appeal, which came before us on Wednesday, 29 April
2026, the appellant’s case is that, despite setting aside nine of the charges
preferred against her, the court a quo did not review and set aside the sanction
imposed on her pursuant to the imposition of those charges, which charges are
now deemed to be void ab initio . Moreover, so the contention on behalf of the
appellant continues, the Judge a quo did not set aside the consequent decision
of Parliament, which confirmed the proposed sanction, being the appellant ’s
removal from office as a magistrate. This is so, so the argument on this point is
concluded, despite these decisions being subsequent legal acts which depend
on the existence of the antecedent findings of guilt for their validity . Thus, on
established Supreme Court of Appeal authority, these antecedent decisions
established Supreme Court of Appeal authority, these antecedent decisions
ought axiomatically to have been set aside.
[14] I find myself in agreement with these contentions on behalf of the
appellant. It is, in my view, a matter of logic that, if a person is sanctioned on the
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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 to be remitted to the decision-maker for reconsideration if
it is not reduced. And, in my view, it matters not that there may or may not be one
charge in respect of which a finding of guilty remains, which is serious enough to
in itself possibly warrant the sanction which had been imposed in respect of the
guilty finding relative to thirteen charges of misconduct.
[15] In that regard, in the misconduct enquiry the third respondent dealt with
the issue of sanction as follows: -
‘[27] The multiple convictions on thirteen counts is reflective that rehabilitation is slim for
the respondent. All these transgressions occurred while she was a high-ranking
magistrate achieving the status of Chief Magistrate.
… … …
[32] In my view, given the multiple charges that the respondent has been found guilty
of, the seriousness of these charges and the need for the sanction to reflect the
gravity of these charges and to engender respect from those whom we serve and
to emphasize the point that no person is above the law or that any Chief Magistrate
can consider their court house as their fiefdom, and whose conduct impinges upon
the integrity of the judiciary as a whole, it is my considered view, having considered
the aforesaid factors, which pains me as a brother judicial officer, is to find that the
only appropriate sanction is to recommend to the Magistrates Commission that you
be removed from office as contemplated in section 13(4)(a)( i) of the Magistrates
Act 90 of 1993, read with regulation 26 (17) (b).’ (My emphasis).
[16] The import of this extract from the written findings of the third respondent
is that, in his assessment of the sanction to be imposed, he clearly attached
considerable weight to the fact that the appellant had been found guilty of
considerable weight to the fact that the appellant had been found guilty of
‘multiple charges’. Nowhere does he give any indication that any of the charges
of which the appellant had been convicted on its own is, in his view, serious
enough to warrant the sanction imposed by him . The simple point, which bears
emphasis and which is illustrated by this extract, is that the sanction followed the
finding that the appellant was found guilty of thirteen counts of misconduct. If the
finding of guilty on the thirteen charges falls away or a substantial portion thereof
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is set aside, then it follows that the sanction should also either fall away or at the
very least be reconsidered.
[17] This was not the approach adopted by the court a quo, who dealt with the
issue of the sanction at paras 70 and 71 as follows: -
‘[70] I am cognisant of the fact that the presiding officer took all the convictions and
the seriousness of the misconduct together and collectively when considering the
sanction and returned a sanction of removal of the applicant from the magistracy. The
applicant argues that at the time when the sanction was imposed, she had been
convicted on thirteen counts of misconduct. Now that nine thereof have been conceded
by the respondent to be reviewed and set aside, it cannot be correct that the sanction
should not be reviewed and remitted back to the presiding officer for redetermination.
[71] I disagree. Having regard to the gravity and seriousness of the remaining four
charges of misconduct the applicant is convicted of, whether taken individually or
cumulatively, there is no doubt in my mind that they warrant the removal of the applicant
from the magistracy. It is my considered view therefore that no purpose will be served
by referring the issue of sanction back to the presiding officer for reconsideration when,
inevitably, will bring the same results. This matter has now been dragging for alm ost
eleven years and the principle of finality of litigation between the parties should now
prevail. Moreover, it has not been shown that the presiding officer has not exercised his
discretion judicially or that the sanction is disproportionate to the misconduct or induces
a sense of shock and is not in accordance with justice to warrant it to be reviewed and
set aside.’
[18] For the reasons mentioned above, I am of the view that in reaching the
conclusion he did, the court a quo misdirected himself.
[19] In reaching the conclusion he did in relation to the sanction, the court a
[19] In reaching the conclusion he did in relation to the sanction, the court a
quo exercised the discretion conferred on him by s 172(1)(b) of the constitution ,
read with s 8(1)(c) of PAJA, which authorises a judicial review court, once it has
found conduct to be unlawful, to craft an order that is appropriate to the
circumstances. The section provides that, following upon a declaration of
constitutional invalidity, a court may make any order that is just and equitable.
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[20] As I have already indicated, this constitutional imperative is taken up in s 8
of PAJA, which provides as follows:
‘8 Remedies in proceedings for judicial review
(1) The court or tribunal, in proceedings for judicial review in terms of section 6(1),
may grant any order that is just and equitable, including orders-
(a) directing the administrator-
(i) to give reasons; or
(ii) to act in the manner the court or tribunal requires;
(b) prohibiting the administrator from acting in a particular manner;
(c) setting aside the administrative action and –
(i) remitting the matter for reconsideration by the administrator, with or without
directions; or
(ii) in exceptional cases –
(aa) substituting or varying the administrative action or correcting a defect
resulting from the administrative action; or
(bb) directing the administrator or any other party to the proceedings to pay
compensation;
(d) declaring the rights of the parties in respect of any matter to which the
administrative action relates;
(e) … … …’. (Emphasis added).
[21] What the court a quo did, in confirming the sanction previously imposed
by the third respondent, despite having set aside nine of the guilty findings, was
in effect to substitute the third respondent’s ruling relative to sanction. In other
words, the court was of the view that this is an exceptional case, which requires
substitution and on that basis in effect (although the order does not spell it out)
granted a remedy to the effect that it be recommended to Parliament that the
appellant be removed from office as a Magistrate.
[22] My reading of the judgment a quo is that the exceptional case is
constituted by the ‘ gravity and seriousness of the remaining four charges of
misconduct’, whether taken individually or cumulatively. These findings of guilty,
so the court a quo reasoned, warrant the removal of the appellant from the
magistracy. Moreover, so it was concluded by the court a quo, no purpose would
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be served by referring the issue of sanction back to the presiding officer for
reconsideration when, inevitably, the same result would be achieved. The court
a quo also attached considerable weight to the fact the matter has been dragging
on for almost eleven years . T he principle of finality of litigation between the
parties, so it was concluded, should now prevail. Moreover, according to the court
a quo , it had not been shown that the presiding officer had not exercised his
discretion judicially or that the sanction is disproportionate to the misconduct or
induces a sense of shock and is not in accordance with justice to warrant it to be
reviewed and set aside.
[23] These are the circumstances, which on my reading of the judgment,
constitute, in the court a quo’s view, the exceptional case warranting substitution.
I am not convinced. I am of the view that, in reaching the said conclusion, the
court misdirected itself if for no other reason than its factual finding that the
sanction – now that the guilty findings h ave been reduced to four charges of
misconduct as against thirteen, is a foregone conclusion. This, in my view, is not
necessarily the case if regard is had to the debates by the members of
Magistrates Commission following the tabling of the third responde nt’s written
findings. In other words, in the exercise of its discretion the court a quo had regard
to incorrect facts.
[24] A summary of the debate between the members of the Magistrates
Commission relative to the imposition of the sanction in relation to the appellant
is contained in the minutes of a meeting of its Executive Committee on 12 March
2021. The minutes indicate that the meeting was informed that a total number of
13 (70%) out of 18 commissioners had supported the sanction of dismissal. Many
of the Commissioners were not too keen to support the findings on the charges
that were related to the activities of JOASA. H owever, in the main , they had
that were related to the activities of JOASA. H owever, in the main , they had
indeed supported the overall sanction of dismissal. The Commissioners who did
not support the sanction were of the view that the presiding officer did not have
the full picture relating to the work of JOASA in relation to the arrangements with
the Department of Justice that went back a number of years . These
commissioners therefore felt that the presiding officer had been overly harsh with
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his finding. One commissioner recommended that the appellant, instead of being
removed from office, be demoted in rank.
[25] The minutes furthermore recorded that the majority of the commissioners
have aligned themselves with the finding of the presiding officer that she be
removed from office as a Magistrate. The majority was therefore of the view that
the matter should be referred for the consideration of the Minister of Justice in
terms of s 13(4)(a)(i) of the Magistrates Act, 1993. The meeting of the Executive
Committee accordingly resolved that, in view of the majority support to impose
the sanction, the matter be referred to the Minister to consider removal from office
of the appellant. The Minister was also to be informed in summary to reflect the
views of the majority support as compared to the views of the minority who did
not support the sanctions.
[26] The simple point is this. Now that a substantial portion of the basis of the
sanction has been set aside, the decision on the sanction should also be set
aside. That, in turn, means that in terms of s 8(1)(c)(i) of PAJA the matter should
be referred back to the Magistrates Commission for reconsideration. There was
no special case made out before the court a quo warranting substitution.
[27] As was held in Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd and Another2, the factors to be taken into account
in deciding if a case was 'exceptional' are: (a) whether the court would be in as
good a position as the administrator to make the decision; (b) whether the
decision was a foregone conclusion; (c) delay; and (d) bias or incompetence on
the part of the administrator. If factor ( a) were established, the court had to
consider factor ( b), and thereafter ( c) and ( d). In assessing ( a), a court had to
consider whether the administrator's expertise was required to make the decision,
and whether it – the court – had all the information that was pertinent to making
and whether it – the court – had all the information that was pertinent to making
the decision. As to (b), there would be a foregone conclusion if there could only
2 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015
(5) SA 245 (CC).
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be one proper decision; and in regard to (c), delay caused by litigation had to be
considered with caution.
[28] No such exceptional case was made out in the court a quo.
[29] Accordingly, I am of the view that, at the very least, the court a quo ought
to have reviewed and set aside the sanction imposed by the third respondent and
remitted the matter back to the Magistrates Commission for reconsideration . As
was held by the Constitutional Court in AllPay Consolidated Investment Holdings
(Pty) Ltd and Others v Chief Executive Officer, South African Social Security
Agency and Others 3, the emphasis on correction and reversal of invalid
administrative action is clearly grounded in s 172(1)(b). Moreover, ‘[l]ogic, general
legal principle, the Constitution and the binding authority of this court all point to
a default position that requires the consequences of invalidity to be corrected or
reversed where they can no longer be prevented. It is an approach that a ccords
with the rule of law and principle of legality’.
[30] In the present matter , referring the matter back to the Magistrates
Commission would have been the appropriate remedy, which takes into account
the interests of the appellant, as well as the interests of the public. I reiterate that
there was, in my view, no special case made out for substitution.
[31] There is another reason why the sanction ought to have been set aside
and referred back to the Magistrates Commission for reconsideration . T hat
relates to the fact that, as contended by the appellant, the decisions relating the
sanction are subsequent legal acts which depend on the existence of the
antecedent findings of guilt for their validity . These subsequent decisions ought
therefore to have been axiomatically set aside.
[32] In that regard, Seale v Van Rooyen NO and Others; Provincial
Government, North West Province v Van Rooyen NO and Others 2008 (4) SA 43
Government, North West Province v Van Rooyen NO and Others 2008 (4) SA 43
3 AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African
Social Security Agency and Others 2014 (4) SA 179 (CC) (2014 (6) BCLR 641; [2014] ZACC 12)
15
(SCA)4, finds application. In that case, the Supreme Court of Appeal held that
where an administrative act was invalid, consequent acts had legal effect only for
so long as the initial act was not set aside by a competent court. If a first
administrative act was set aside, a second act that depended for its validity on
the first act had to be invalid as the legal foundation for its performance was non-
existent. In that matter, the court accordingly held that since the Premier's
decision had already been set aside, the result was that all acts done consequent
upon that decision (including the registration of the servitude), and all acts to give
effect to it, were of no force or effect.
[33] That, in my view, is the case in casu in respect of the decision on sanction.
Once the court a quo set aside nine of the underlying, antecedent convictions,
which convictions formed the basis of the subsequent decision on sanction, it was
required, in terms of the Supreme Court of Appeal decision in Seale, to set aside
the subsequent decision on sanction.
[34] This means that the court a quo in not setting aside the sanction committed
an error of law, entitling this court to interfere with the exercise of the court a quo’s
discretion.
[35] Closely related to the aforegoing grounds on which the sanction imposed
by the third respondent ought to have been set aside , is that relating to the
separation of power. In that regard, the appellant contends that the court a quo
erred in its application of the test to be applied in relation to the judicial review
court interfering with the imposition of the sanction. The court a quo held at para
[67] that ‘sentencing is pre -eminently in the domain and discretion of the trial
court’. The higher court, so it was held by the court a quo, ‘will only interfere with
the sanction or sentence imposed by the lower court if it induces a sense of shock
or is disproportionate to the misconduct or is such that it does not accord with
or is disproportionate to the misconduct or is such that it does not accord with
justice, or if the discretion was not exercised judicially’.
4 Seale v Van Rooyen NO and Others; Provincial Government, North West Province v Van Rooyen NO and
Others 2008 (4) SA 43 (SCA).
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[36] The court a quo then goes on and makes the point that the judicial
presiding officer in the misconduct hearing was conferred with a wide discretion
in the true sense and, in imposing a sanction, had available to him a wide range
of equally permissible options. He cannot be faulted, so the court a quo reasoned,
for choosing the option of removal of the applicant from the magistracy.
[37] Relying on Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd and Another 5, the court a quo concluded that it
could not interfere with exercise of the wide discretion by the presiding officer.
[38] The appellant contends that the court a quo applied the wrong test, in that
it relates to the level of interference that an appeal court is permitted in regard to
a discretionary decision of a lower court. It does not deal with the approach that
a review court must adopt in dealing with a review of a decision made in terms of
a broad discretion in the true sense.
[39] I agree. The test to be applied in assessing the reviewability of an
administrative decision, where the administrator had exercised a wide discretion
in the true sense, was set out by the SCA in Maxrae Estates (Pty) Ltd v The
Minister of Agriculture, Forestry & Fisheries6, in which it was held as follows: -
‘[12] The parties were in agreement that in considering the appeal the Minister
exercised a wide discretion conferred upon him under s 4(2) of the Act, and that his
decision constituted administrative action. The appeal therefore amounted to a rehearing
of the matter which could take into account new evidence. It is trite that the exercise of
public power by the executive and other public functionaries is subject to the principle of
legality. Section 6(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
enjoins the courts to review administrative action where such was taken on the basis of
irrelevant considerations and where relevant factors were ignored. An administrative
irrelevant considerations and where relevant factors were ignored. An administrative
decision must be rationally related to the purpose for which the power was given to the
administrator. As to the test on whether the exercise of public authority passes
constitutional muster, the Constitutional Court in Pharmaceutical Manufacturers
5 Footnote 2 above.
6 Maxrae Estates (Pty) Ltd v The Minister of Agriculture, Forestry & Fisheries 2021 JDR 1115 (SCA).
17
Association of South Africa and Another: In re Ex Parte President of the Republic of
South Africa and Others said:
“The question whether a decision is rationally related to the purpose for which the
power was given calls for an objective enquiry. Otherwise a decision that, viewed
objectively, is in fact rational, might pass muster simply because the person who
took it m istakenly and in good faith believed it to be rational. Such a conclusion
would place form above substance and undermine an important constitutional
principle”.’
[40] The SCA then goes on to say the following at para [17], which goes directly
to the adjudication of the reviewability of an administrative decision where the
administrator, in making the decision, exercised a wide discretion in the true
sense: -
‘[17] The high court was clearly alive to the fact that the Minister had to exercise his
broad discretion within the boundaries of the law. However, it seems to have
misconstrued what, in effect, that principle entailed in this case. The high court reasoned,
erroneously, that the court was precluded from examining the propriety of the Minister's
decision because of the broad discretion which he exercised and his expressed intention
to advance the objectives of the Act. However, the wide Ministerial discretion essentially
entailed the consideration by him of the factors that were relevant to the decision he was
required to make. The exercise of a wide discretion was no licence for disregarding those
factors and making an arbitrary decision. And the Minister could not use the doctrine of
separation of powers to shield such arbitrary decision from review by the court. Mere
mention that the Ministerial discretion has been exercised for the given purpose was not
sufficient. The court was constrained to intervene where the decision maker had ignored
the relevant factors and taken into account irrelevant considerations.’ (Emphasis added).
the relevant factors and taken into account irrelevant considerations.’ (Emphasis added).
[41] Maxrae is therefore authority for the principle that in casu the court a quo
was required to decide whether the judicial presiding officer, in imposing a
sentence, had considered all of the factors that were relevant to the decision in
relation to the sanction. One such consideration would obviously have been the
fact that, as opp osed to thirteen, the appellant was found guilty only of four
charges of misconduct.
18
[42] On the basis of this authority, I conclude that the court a quo misdirected
itself, which is another reason why the order confirming the sanction imposed
should be upset.
[43] In addition to appealing the order of the court a quo confirming the
sanction, the appellant also appeals the order dismissing the application for a
review and the setting aside of the ruling by the third respondent finding her guilty
of misconduct in respect of charges 3, 14, 17 and 20. There are a number of
grounds on which the appellant appeals that order and I now turn my attention to
those grounds of appeal.
[44] In dealing with these grounds of appeal, I am mindful of and will be guided
by Dumani v Nair and Another 7, in which the SCA also dealt with an application
for the review of a decision by a judicial presiding officer in a misconduct enquiry,
where the salient facts resemble those in casu. Importantly, the SCA (per Theron
JA) held as follows at para [22]: -
‘[22] The enquiry before the presiding officer was whether, on a balance of
probabilities, Dumani was guilty of misconduct, bearing in mind that because such
conduct amounted to a criminal offence, it is inherently unlikely that anyone, particularly
a magistrate, would have indulged in it. The enquiry before this court is not whether the
presiding officer was correct in his conclusion that Dumani was guilty on three of the
charges. The main enquiry before this court is whether the presiding officer's decision is
so unreasonable that no reasonable person could have reached it. The further ground of
review relied upon by Dumani, namely that the presiding officer acted arbitrarily, is linked
to the main enquiry in that the presiding officer would have acted arbitrarily if it were to
be found that his finding of guilt on the part of Dumani could not be justified on the
acceptable evidence. I am not persuaded that the review grounds relied upon have been
acceptable evidence. I am not persuaded that the review grounds relied upon have been
established. I am satisfied that a reasonable person in the position of the presiding officer
on the evidence disclosed in the record and applying the correct test in law could have
reached the conclusion that Dumani was guilty of the three counts of misconduct of which
he was convicted.’ (My emphasis).
7 Dumani v Nair and Another 2013 (2) SA 274 (SCA).
19
[45] The first ground of appeal is that the court a quo ought to have found that
the Magistrates Commission and the judicial presiding officer acted for an ulterior
motive. The allegations by her relating to an ulterior motive, so the appellant,
avers, were not disputed in the review application. On that basis, the findings of
guilty should have been reviewed and set aside.
[46] The allegation by the appellant relating to the ulterior motive is that the
Magistrates Commission instituted the disciplinary proceedings against her for
reasons other than disciplining her. The real reason for the misconduct inquiry,
so the appellant asserts, was to punish her inter alia for her involvement with and
in the activities of the Judicial Officers Association of South Africa (‘ JOASA’), a
voluntary association.
[47] The court a quo found that there is no merit in this ground of review for the
simple reason that the appellant failed to demonstrate such. There was nothing
untoward, so it was held by the high court, in Mr Meijer, the deponent to the
respondents’ answering affidavits, deposing to the said affidavits. Mr Meijer
describes himself as an adult male, remunerated by the Department of Justice
and Constitutional Development for the past 42 years . He ‘currently hold[s] the
office of Magistrate, Judicial Quality Assurance responsible for the conduct
matters of the Ethics Division’ of the Magistrates Commission. The court therefore
rejected the appellant’s contention that Mr Meijer, who was, at the relevant time,
‘remunerated’ by the Department of Justice and was a part of the Magistrates
Commission, did not have the requisite knowledge to answer to the case on
behalf of the appellant . The court also was not convinced that Mr Meijer was
required to answer on the issue of ulterior motive.
[48] The appellant contends that the court a quo erred in accepting Mr Meijer’s
evidence as admissible a nd relevant to the issue of ulterior motive. Mr Meijer
evidence as admissible a nd relevant to the issue of ulterior motive. Mr Meijer
could not give evidence, so the contention on behalf of the appellant goes, as to
the motive of the decisionmaker insofar as the decision to charge the appellant
goes. He had no personal knowledge of such motive.
20
[49] I find myself in agreement with the findings of the court a quo.
[50] The very first point to be made about this ground of review is that, as a
general rule, the South African legal system of fact finding is governed by the
rules of the law of evidence and by a set of legal principles based on the logic of
inferential reasoning and probability theory. Motive plays very little, if any part in
the adjudication process.
[51] In any event, the appellant is the one alleging ulterior motive and
accordingly bears the onus of proving same in the judicial review application. She
has failed to do so. In truth, the sum total of the supposed evidence in support of
the contention that there is an ulterior motive for the disciplinary proceedings, are
suppositions and bald allegations that because she was a JOASA member, the
Commission sought to punish her . That should be contrasted with the evidence
in support of the accusations against her which emanated from complaints by
other Magistrates and officials. That evidence was in the form of the transcript of
the misconduct hearing and extracts of the transcripts, which were annexures to
the affidavits by Mr Meijer.
[52] The simple point is this. On the evidence and the probabilities, the
appellant was accused and charged of misconduct because she had in fact made
herself guilty of misconduct and not because of her association with a voluntary
organisation. Importantly, as averred by Mr Meijer in the answering affidavit and
as accepted by the court a quo, the decision to discipline and charge the appellant
was taken by the Magistrates Commission in terms of the Magistrates Act . This
is evidenced by the charges brought against the appellant in terms of specific
contraventions of the Code of Conduct of Magistrates.
[53] In that regard, the appellant’s reliance on Sex Worker Education and
Advocacy Task Force v Minister of Safety and Security and Others 8 is, as
contended on behalf of the respondents, completely misplaced. In that matter the
contended on behalf of the respondents, completely misplaced. In that matter the
8 Sex Worker Education and Advocacy Task Force v Minister of Safety and Security and Others 2009 (6)
SA 513 (WCC).
21
court held that ulterior purpose though in existence during the arrest of a person
is not unlawful if it culminates in the prosecution of the person who acted
unlawfully and where the intention was to cause such perso n to stop their illegal
action. The judgment also establishes that where arresting officers arrest sex
workers knowing of the high probability that no prosecution of the sex workers
will result, they do so unlawfully ( i e their ulterior purpose so proved was not to
bring the sex worker to prosecution towards ending illegal activity but merely to
harass them).
[54] The point made in Sex Worker Education is that an ulterior motive is not
unlawful if it culminates in the prosecution of a person. In this matter, as already
stated above, the appellant was indeed accused of and charged with misconduct
in terms of the Magistrates Act and the Regulations. Therefore, applying the
aforegoing principle, it cannot be said with any conviction that the Magistrates
Commission acted for an ulterior motive.
[55] I am bolstered in the aforegoing conclusion by Freedom Under Law (RF)
NPC v Judicial Service Commission and Another9, in which the SCA (per
Ponnan JA) held as follows: -
‘[34] … … much like a public prosecution, the public interest in the effective disciplining
of a judge and the maintenance of judicial independence demands that the focus of the
enquiry should be on the merits of the complaint, not its provenance. In this context, this
Court has held that even an ulterior purpose should not vitiate a prosecution that was
well founded on the merits . The JSC resorted to 'accusing the accuser', instead of
considering and engaging with the allegations of wrongdoing. Courts should be slow to
countenance such a strategy. As this Court held in Nkabinde and Another v Judicial
Service Commission and Others (Nkabinde) , where the applicant had applied to set
aside the referral of the complaint based on procedural unfairness, '[i]nvalidating the
aside the referral of the complaint based on procedural unfairness, '[i]nvalidating the
complaint would infringe upon the rights of the complainants … and impact negatively
on the image of the judiciary'. (Emphasis added).
9 Freedom Under Law (RF) NPC v Judicial Service Commission and Another 2023 JDR 2189 (SCA).
22
[56] For all of these reasons, I conclude that the appellant has not proven
ulterior purpose by the Magistrates Commission. In any event, as was held in
Freedom Under Law (supra), even if there was an ulterior purpose in casu, it
should not vitiate the prosecution of the appellant as it was well founded on the
merits – she was after all found guilty of four of the charges of misconduct. This
ground of appeal is without merit and should therefore be dismissed.
[57] The same applies to the next ground of review relating to bias on the part
of the Magistrates Commission and the presiding officer . That ground is not
supported by any evidence, except for the say so of the appellant and certain
suppositions she made based on the way in which the presiding officer
supposedly treated discrepancies in the evidence of witnesses against her. As
the appellant puts it, the constant preferential treatment of evidence against the
appellant, combined with the constant disregard for evidence in her favour, leads
to the objective view that the presiding officer was biased against her and sought
to cherry-pick evidence which proves her guilt.
[58] There is no merit in this ground of appeal based on the bias ground of
review.
[59] There are other grounds of appeal, which, in my view, lack merit and it is
not necessary for me to deal in detail with those.
[60] So, for example, the appellant complains about the fact that the Minister
of Justice, when deciding to refer the matter to Parliament laboured under the
misapprehension that the Magistrates Commission had made a recommendation
to support the findings by the presiding officer, when in truth and in fact no such
recommendation was made. In support of this assertion, the appellant points out
that on 26 February 2021 the Magistrates Commission convened a meeting ,
where it was decided that due to a lack of unanimity between its members, the
submissions of each of the commissioners would be put before the Minister of
submissions of each of the commissioners would be put before the Minister of
Justice for his consideration. From the record, it appears that the inputs of the
various commissioners are recorded in a summary prepared by a Commission
23
official. Thereafter, on 12 March 2021, the executive committee of the Magistrates
Commission conducted a virtual meeting , where thirteen out of the eighteen
commissioners supported the sanction of removal. The meeting concluded with
the adoption of this majority view. The meeting therefore resolved to impose the
sanction and to refer the matter to the Minster of Justice for his consideration in
terms of s 13(4)(a)(i) of the Magistrates Act.
[61] The court a quo in finding that the Magistrates Commission had decided
to recommend to the Minister the sanction of removal, so the appellant contends,
therefore erred. The court, so the contention continues, should have had regard
to the fact that the Magistrates Commission did not in fact resolve to support the
sanction and to make the removal recommendation to the Minister, but in fact
decided to put all of the submissions before the Minister for his consideration.
[62] These inaccurate and incomplete representation by the Magistrates
Commission to the Minister, so the appellant avers, caused Parliament to confirm
the sanction. This and the fact that the Minister made a decision based on
erroneous facts, in themselves, so the appellant contends, constitute a proper
ground of review.
[63] This ground of appeal falls to be dismissed on the basis simply that the
appellant is clearly mistaken in her assertion that the Magistrates Commission
never recommended the removal of the appellant from office . This is simply
incorrect. By all accounts the Commission, by a thirteen out of eighteen-majority
vote, had decided to support the sanction of removal from office. In any event, in
the words of Freedom Under Law (supra), a charge of misconduct on the part of
a Magistrate should never be invalidated on the basis of procedural unfairness.
Because to do so, would infringe upon the rights of the complainants and impact
negatively on the image of the judiciary'
[64] As for the ground of appeal in relation to the Biowatch principle, it is not
[64] As for the ground of appeal in relation to the Biowatch principle, it is not
necessary for me to deal with this ground in light of my finding relating to the costs
of the review application. In that regard, whilst I am in agreement that the said
24
principle does not find application in the judicial review application, I am of the
view that each party should have been ordered to pay his/her/its own costs of the
application. Such an order is in my view warranted by the fact that in the review
application, after this appeal judgment, the appellant would have had a measure
of success in that she would have succeeded in having set aside nine of the
thirteen charges of misconduct against her. Additionally, the appellant succeeded
in having the sanction decision reviewed and set aside. Conversely, the
respondents have been successful to a degree in that they were able to
successfully resist the appellant’s claim to have set aside the guilty findings in
relation to four of the misconduct charges.
[65] It is for these reasons that I would grant the costs order I proposed above.
Conclusion and Costs of Appeal
[66] For all of these reasons the appeal must succeed and the order of the
court a quo should be replaced with one in terms of which the sanction imposed
by the third respondent, being the recommendation to remove the appellant from
office as a Magistrate, and all subsequent and antecedent decisions, are
reviewed, set aside and remitted for reconsideration.
[67] The general rule in matters of costs is that the successful party should be
given his costs, and this rule should not be departed from except where there are
good grounds for doing so. See: Myers v Abramson 10. There are no grounds in
this case to depart from the ordinary rule that costs should follow the result. I
therefore intend granting costs in favour of the appellant against the first, second,
third and fourth respondents. The complexity of the matter does, in my view,
warrant costs to include the costs of two counsel, with one being Senior Counsel
(where so employed).
10 Myers v Abramson,1951(3) SA 438 (C) at 455
25
Order
[68] In the result, the following order is made: -
(1) The appellant’s appeal against paragraph (2) of the order of the court a quo
dated 19 March 2024 is upheld, with costs.
(2) Paragraph (1) of the order of the court a quo dated 19 March 2024 is
confirmed.
(3) Paragraph (2) of the order of the court a quo dated 19 March 2024 is
reviewed, set aside and replaced with an order in the following terms: -
‘(2) The application to have reviewed and set aside the finding by the third
respondent dated 1 October 2020, that the applicant is guilty of misconduct as
per charges 3, 4, 17 and 20, is dismissed.
(3) The decision / finding by the third respondent dated 2 October 2020 to
recommend to the Magistrates Commission that the applicant be removed from
office as contemplated in section 13 of the Magistrates Act, is hereby reviewed,
set aside and remitted back to the Magistrates Commission for reconsideration.
(4) The decision / finding by the second respondent to recommend to the first
respondent that the applicant be removed from office as contemplated in section
13 of the Magistrates Act, is hereby reviewed, set aside and remitted back to
the Magistrates Commission for reconsideration.
(5) The decision / finding by the first respondent to recommend to Parliament that
the applicant be removed from office as contemplated in section 13 of the
Magistrates Act, is hereby reviewed, set aside and remitted back to the
Magistrates Commission for reconsideration.
(6) The decision by the fourth respondent (Parliament) dated 8 June 2022 ,
removing the applicant from office as contemplated in section 13 of the
Magistrates Act, is hereby reviewed, set aside and remitted back to the
Magistrates Commission for reconsideration.
(7) All other decisions made subsequent to the decision by the third respondent on
sanction, made pursuant to the decision to convict the applicant in respect of
thirteen misconduct charges, is reviewed and set aside.
thirteen misconduct charges, is reviewed and set aside.
(8) Each party shall bear her / his / its own costs of the applicant’s opposed review
application.’
27
HEARD ON: 29 April 2026
JUDGMENT DATE: 11 August 2026 – judgment handed
down electronically
FOR THE APPELLANT: Feroze Boda SC and
Suhail Mohammed
INSTRUCTED BY: Dockrat Incorporated Attorneys,
Illovo, Johannesburg
FOR THE FIRST TO THE
THIRD RESPONDENTS: T J Machaba SC and Nadia Badat
INSTRUCTED BY: The State Attorney, Johannesburg
FOR THE FOURTH RESPONDENT: Mpilo Sikhakhane
INSTRUCTED BY: The State Attorney, Cape Town