Mungo Soggot
ACADEMICS and legal professionals this week described Judge Hennie van Heerden as having an exceptional legal mind with an impressive track record on the bench.
He has a low profile — several lawyers were unable to offer an opinion of him — but most of those who had had contact with him sung his praises. A minority said Van Heerden was too staid for the job and had given several conservative decisions.
One prominent legal academic said: “He is austere and unrelenting. He runs a tight but traditional court.” The academic, who is backing Constitutional Court deputy president Ismail Mahomed, believed Van Heerden was not the man to reform the Appellate Division, saying his appointment “would probably perpetuate the marginalisation of the Appellate Division”. Another academic described Van Heerden as “apolitical”.
Van Heerden, 65, was educated at the universities of Stellenbosch and the Free State, where he obtained an LLD in competition law. He became senior counsel in 1972, was appointed to the Free State Provincial Division in 1978 and the Appellate Division in 1980.
Van Heerden emerges as a voice of reason in academic analyses of the Appellate Division’s support of State of Emergency legislation during the 1980s. In the case of United Democratic Front v State President the majority of the appeal bench — who included Judge Joos Hefer and the then Acting Chief Justice Pierre Rabie — refused to uphold a lower court’s decision to strike down certain Emergency media regulations for their vagueness.
The regulations held, among other things, that it was subversive to incite or encourage members of the public to attend a public gathering. The regulations defined a “subversive statement” as one which incited or encouraged an act or omission identified by the commissioner of police as threatening the public order or prolonging the State of Emergency.
In an article called The War Against Law, published by the South African Journal of Human Rights Professor Fink Haysom and Clive Plasket said that in this case Rabie effectively held the courts had no role in checking abuses of power. He said the courts’ intervention was not necessary because the executive would control its own excesses of power.
After Rabie left open the question of whether the commissioner had uncontrolled powers, Judge Grosskopf stepped in. He made the “bold assertion” that the commissioner had not been given unfettered powers because the state president had called on him to clamp down on “subversive statements” which were easy to identify.
“There can be no more effective critique of this reasoning than that offered by Van Heerden in his dissenting judgment,” said Haysom and Plasket. Van Heerden held the power given to the commissioner was uncceptable, amounting to carte blanche to amend the regulations.
He also said one of the regulations was defective because, among other reasons, the absence of clear guidelines meant the commissioner would be unable to decide whether his decision coincided with the opinion of the state president.