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Disbarred lawyer allegedly swindles clients out of millions | Maren de Klerk


Mail & Guardian article about fraudster Ben van Heerden | Maren de Klerk
Mail & Guardian article

As per Mail & Guardian article ...


Disbarred attorney and alleged fraudster Ben van Heerden is continuing to target victims and authorities do not seem to be in any rush to bring him to account.


Van Heerden, 44, has allegedly defrauded several people out of a conservative R6 million since his suspension from South Africa’s legal regulatory body, the Legal Practice Council, as a legal practitioner in May 2016. He was finally struck from the roll in November.


Despite his activities being known to authorities, including the council, the South African Police Service (SAPS) and the director of public prosecutions (DPP) in the Western Cape, it seems Van Heerden is continuing to pocket large sums of money by misappropriating funds paid to him in return for services he cannot legally offer.


Van Heerden maintains his innocence and says he does not owe anyone money.


“I deny it, I have not acted [as a legal practitioner] after I was suspended,” Van Heerden told the Mail & Guardian when he was confronted with allegations of fraud and theft.


“I removed myself completely from it,” he attested.


But overwhelming evidence contained in court documents, financial statements from several individuals and correspondence between him and clients, which the M&G has seen, shows the opposite.


In 2020, Van Heerden admitted to a former client in Stellenbosch, Rhys van Wyk, he was not lawfully allowed to practise but assured him that it was not a “big deal”.


During a recorded conversation between Van Heerden and Van Wyk in 2020, the latter confronts Van Heerden about his suspension as a legal practitioner and asks why he did not inform him.

Van Wyk used the words “struck from the roll” instead of “suspended” — although he would only be struck from the roll a year after the conversation took place.


Van Heerden protested, confirming that he’d been suspended but not struck from the roll.


“Struck off means you cannot practise. In my case, in terms of suspension, I was a doos with clients in 2012 and was suspended because of unprofessional conduct.”


In the conversation, Van Heerden agrees that he cannot represent someone in court — in this case, Van Wyk — but insists it is not a “big deal” and claims it does not affect his “skill set”.


“Despite the bitterness of this, I’m suspended, not disbarred. I cannot stand in court but I cannot switch off my brain.


“I cannot switch off my years of experience,” Van Heerden said.


Van Wyk hired Van Heerden — who was suggested to him by a friend — to assist him in a settlement agreement with Rank Property Administrators during the Covid-19 pandemic. He paid Van Heerden his legal fees and was under the impression that a settlement had been reached, when in fact it had not.


Fortunately, Van Wyk managed to retrieve R210 000 of the total amount of R280 000. But Van Wyk faces additional charges after Van Heerden falsely assured him that the matter had been settled. This could lead to him paying a further R400 000 in damages to Rank Property Administrators. Judgment is expected to be handed down in the Paarl magistrate’s court on 12 June, Van Wyk told the M&G.


Van Heerden advertised legal services through at least two of his entities — Oryx Forensics, which is in the process of being deregistered, and Blue Skies Legal Risk Management, which was registered in 2021, after his suspension.


At Oryx Forensics, Van Heerden claims he is a “certified fraud examiner specialising in criminal litigation”. The company, registered in 2015, still operated well after he was suspended and to this day he allegedly still owes a client a chunk of money she entrusted to him.


The client, who asked to remain anonymous, paid over R230 000 to Van Heerden in 2015 to facilitate the liquidation of her late husband’s business, which involved a payment to the South African Revenue Services (Sars). She gave the money to Van Heerden to facilitate the payment.

But the woman told the M&G Van Heerden never paid the revenue service, or finalised the liquidation process and only reimbursed her R145 000. Eventually, she acquired legal assistance to press Van Heerden to pay back the full amount of over R230 000 he owes her, but he never repaid it.

When the M&G confronted Van Heerden about the outstanding sum, his tone turned apologetic. He claimed that although the client had sued him, he would “gladly speak to her”. He didn’t offer to settle the whole amount but promised to call the client the following day — which he did not do.


The M&G reached out to nine individuals who claim Van Heerden owes them money, the majority of whom have lost all the funds they paid to him — amounts varying from R40 000 to R3 million.


One person who entrusted close to R2 million to Van Heerden to manage in a trust account was not aware he had been disbarred as an attorney.


Following weeks of correspondence between the two, it became apparent that there was no trust.

Van Heerden’s carefully curated network of alleged fraud and misappropriation of funds was fractured when the paymaster in Namibia’s multimillion “Fishrot” corruption saga acquired legal services in 2020 after coming to South Africa.


Marén de Klerk, a commercial lawyer for 25 years, is accused of using his trust account for the distribution of ill-gotten loot to various accounts in the ongoing Fishrot corruption trial in which Namibia’s former fisheries minister Bernhardt Esau is embroiled.


Paymaster-turned-whistleblower De Klerk admitted in a 500-page affidavit to having unwittingly committed crimes linked to the Fishrot saga. Fearing for his life, De Klerk left Namibia and was introduced to Van Heerden, whom he knew as a lawyer.


Months later, and after De Klerk paid over R3 million into a South African trust account he believed was managed by Van Heerden, he became aware that the latter had been suspended in 2016.


When De Klerk started requesting money from his trust account, Van Heerden undertook to make a payment on several occasions but failed to do so.


Meanwhile, De Klerk has laid criminal charges against Van Heerden and has escalated the matter to the Western Cape director of public prosecutions.


He also started tracking down other clients who claim their funds have been misappropriated or stolen by Van Heerden and has advised them to go to the police.


De Klerk’s efforts to engage with law authorities to stop Van Heerden has been a protracted process while the legal regulatory body is still assessing a way forward regarding legal funds Van Heerden has owed them since last year.


According to the DPP’s spokesperson in the Western Cape, Eric Ntabazalila, a senior state advocate has been appointed to deal with the matter but it is “in abeyance pending further investigation by the SAPS”.


However, a police officer working on the case told the M&G the dossier is at the DPP and their office is awaiting feedback.


The Legal Practice Council will not prosecute or investigate Van Heerden in its personal capacity but has pledged its support by “providing a copy of all the papers to the SAPS for investigation of Mr Van Heerden’s conduct in practising as an attorney while suspended, which is also a criminal offence”, according to council spokesperson Kabelo Letebele.


The council challenged Van Heerden’s fitness to practise as an attorney in 2021, five years after he was initially suspended. Letebele confirmed Van Heerden is yet to comply with this court order, delivered in November, in that he needs to hand in his certificate of enrolment as an attorney.

Van Heerden was given more than his requested 10 days to reply to the M&G’s questions but had not responded by the time of publication.


~ Maren de Klerk

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