The letter, dated 1 February 2023 under advocate Andre Ferreira’s letterhead and addressed to Judge Goliath, states that Willem van Heerden’s behaviour breaches the ethical code and is “inappropriate” for an acting judge.

When contacted, Ferreira confirmed he was the author and sender of the letter, and said he had laid a complaint with the Judicial Service Commission (JSC) on 2 February. Ferreira was surprised the letter had been leaked, as he had sent it only to Goliath and the JSC.

It appears Van Heerden’s appointment was one of the last made Western Cape Chief Justice John Hlophe, who was suspended by President Cyril Ramaphosa on 14 December 2022.

JSC spokesperson advocate Sesi Baloyi SC said Ferreira’s letter had been received, but he had not filled in the required complaint form, which he had since been advised to do.

Queries to Goliath were referred by her registrar to the Western Cape High Court chief registrar Ruanne David, who in turn referred the matter to the Office of the Chief Justice. No response from the Office of the Chief Justice has been forthcoming.

Facebook post

In his letter to Goliath, Ferreira refers to a Facebook post by Van Heerden’s Paarl-based law firm, Van Wyk Van Heerden Attorneys, which announces Van Heerden’s appointment as acting judge at the high court from 16 January.

Headlined, “We are proud to announce”, the Facebook post states, “We have no doubt the new venture will be a success and wish him all the best until his return.”

The Paarl Post insert announcing Willem van Heerden’s appointment as an acting judge.

An insert announcing his appointment as acting judge was also published in the Paarl Post community newspaper.

“My understanding has always been that any Acting Judge should be humble and be grateful for being appointed, and that this appointment should not be utilised to better one’s practice or create leverage to publicise the fact of being either superior or better equipped because of such an appointment,” wrote Ferreira in his letter of complaint.

He further stated he is “informed” that Van Heerden “walks around Paarl Gymnasium Primary School and requires people at meetings to refer to him as Judge and through this again, in a small town as Paarl (sic), wishes to generate work by advertising himself and his firm, because of this appointment.

“I am bringing this, with respect, to your attention, as I think it is something which needs to be considered in the future, as the appointment of Acting Judges should not be used by them as a springboard to solicit work for their firms or to advertise a particular member’s prowess,” stated Ferreira.

Read more in Daily Maverick: “When legal practitioners behave badly, they undermine the legitimacy and effectiveness of the profession” – Pierre De Vos

Code violation

Research and advocacy officer Mbekezeli Benjamin, at watchdog organisation Judges Matter, said if Ferreira’s allegations were proven to be true, it would seem that Van Heerden could be in violation of the Code of Judicial Conduct.

Benjamin said the code of conduct, to which acting judges were beholden during the term of their appointment, stated they may not “use or lend the prestige of the judicial office to advance the private interests of the judge or others”.

Speaking hypothetically, as he had not seen Ferreira’s letter, he said depending on the degree of contravention of the code, the actions would “most likely constitute ‘less serious misconduct’ in terms of section 15 of the Judicial Service Commission Act of 1994.

“It would then be referred to the (Acting) Judge President who may take remedial steps, including a reprimand, in terms of section 17(8) of the JSC Act,” said Benjamin.

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An advocate who has been senior counsel for 20 years and has sight of Ferreira’s complaint, but asked not to be identified, said if the allegations were true, then Van Heerden’s behaviour was “outrageous”.

The senior counsel said an acting judge position was always temporary, after which one went back into practice, and to use the appointment as a marketing opportunity was “highly innappropriate”.

“Obviously, it’s (being appointed acting judge) a feather in the cap,” he said, “but among advocates, it’s considered distasteful to make public announcements.” 

That Van Heerden is an attorney appointed as acting judge was also an unusual feature of the Cape Law Society, he said. While it wasn’t unheard of, it was unusual for an attorney to be appointed. However, while now suspended Judge President John Hlophe was in charge, it became more common, with even junior attorneys being appointed to the bench in an acting capacity. 

“I haven’t received anything from the JSC,” said Van Heerden, who added that he knew Ferreira “very well”. DM/WCN