Stories about useless lawyers in a useless system, taking care of their own are old hat. So here’s one that adds an ingredient – a useless parastatal organisation.
In 1998 Gary Mills – who’s been in the diving salvage business for some 40 years – bought the Ocean King from a company called Viking Fishing. At R120,000 the ship was a good buy: it needed some engine work, but was in pretty good condition and, refitted, would make a great maritime research and sea rescue vessel.
The Ocean King was docked at the arse end of Cape Town harbour – quay 902/3 if that means anything to you – and from the outset there were security problems, with vagrants boarding the ship and threatening Mills’ staff. Over the following two years the situation got even worse – on one occasion Mills himself was confronted by two panga-wielding vagrants who claimed they owned the ship.
What made the situation so galling was that each time Mills wanted to work on the ship he had to go through elaborate security checks – yet vagrants seemed to have free access.
Once, vagrants even started a fire on board, and, over time, everything of value was stripped from the Ocean King.
By the end of 2001 Mills had lodged 18 charges of assault and theft with the police, and numerous complaints with the operators of the harbour, Portnet (a division of Transnet), including a personal letter to every Transnet director. Absolutely nothing was done.
In desperation Mills stopped paying his monthly R5,000 harbour fee. It hardly needs to be said that this provoked a response from the otherwise sleeping beast – in 2003 Portnet sued him for payment of the fees. (It seems that some legal proceedings may have preceded this, with Judge Burger holding that Mills had not abandoned his ship, and that Portnet had a duty to keep it secure).
Mills defended the claim and counterclaimed for damages – which was the start of a very expensive and frustrating experience. Mills went through a number of attorneys, with all the usual expensive consultations with counsel (with senior never able to act without junior, of course).
When Fairbridges sent him a bill for R50,000 after a consultation with counsel, Mills decided to try another approach and, following a friend’s recommendation, consulted with advocate Hanri Loots. (An attorney called Mzo Mtikitiki, of John Riley Attorneys was also roped in, as an advocate cannot deal directly with a client.) Loots impressed Mills with his quick grasp of the matter and his positive attitude.
And better still, he was happy to work on a contingency (no win – no fee) basis. So Mills briefed Loots to represent him at trial.
On 9 June 2004 the matter came up for hearing. According to Mills, he duly arrived at Loots’ chambers – only to have Loots tell him that going ahead would open up too big a can of worms. He told Mills that if he wanted to go ahead he’d have to represent himself – or he should simply sign a settlement agreement, which he then placed in front of Mills.
Mills went into such a state of shock that he signed, right then and there, an agreement that was basically a capitulation. It required him to move his ship out of the harbour within a month, failing which the boat would be chopped up for scrap. As all sorts of approvals would have to be obtained, there was absolutely no way he could move the ship out within that period – so the Ocean King was duly cut to pieces.
In 2005 Mills, hoping for some recourse against either Portnet or the lawyers who’d sunk his ship, consulted an attorney by the name of Bennie van der Hoven, of the firm Van der Hoven Van Zyl. Van der Hoven assured Mills that he knew both his maritime law and advocate Hanri Loots, and that he would sort things out. Van der Hoven then suggested getting the matter back onto the roll (it had been postponed indefinitely when the settlement was signed).
So Mills paid Van der Hoven a deposit of R10,000 – but got a rather poor return: nothing, to be precise. As Mills puts it, Van der Hoven talked the talk but walked hardly at all. (Which was exactly noseweek’s own experience of the attorney – he had not a clue as to what the matter was about, and promised to read the file and respond the next morning with a synopsis. He never did.)
In desperation, Mills approached the Cape Bar Council to complain about Loots. He set out his complaints in a letter, including the fact that Loots had led him to believe that he was on to a winner, that Loots had withdrawn from the case on the day of the trial – effectively forcing Mills to accept a very bad settlement – and the fact that when Loots returned Mills’ papers, roughly 50% of the documentation was missing.
Loots filed a response in which he said: “At no stage did I withdraw from the matter, either for the reason Mr Mills advances, or at all. The matter was settled during the course of the day of 9 June 2004. The settlement of the matter was negotiated (with the input of Mr Mills) after which a written deed of settlement was drafted and signed by Mr Mills himself in my chambers in the presence of my instructing attorney and the plaintiff’s counsel, Wragge SC [...] On the day of the trial the matter in its entirety was once again discussed with Mr Mills. Mindful of the risk relating to running a trial and the implications a loss could have, Mills confirmed that he would not financially be able to afford losing the matter [...] I wish to add that I lost no documentation.”
Mills responded to Loot’s letter as follows: “Regardless of whether he withdrew, stepped down or just ran away, the reality is he left me stranded – a gross abuse of his position as counsel and absolute cowardice [...] Mr Loots also knew I had been fighting Portnet for seven years for the preservation of the very thing he cornered me into signing away, by resorting to disgusting psychological tactics [...] Mr Loots knew full well that even if I had had the opportunity to remove my ship from the port, one month to ready the vessel was a total impossibility – even with the full co-operation of the port authorities and necessary department. Why would I sign away my rights? The instructing attorney, Mr Mtikitiki, was, in his own words, ‘shocked and surprised’ that Mr Loots could do what he had done – this was definitely not the instruction from Mr Mtikitiki [...] Short of accusing Mr Loots of colluding with Portnet – I can only continue to harbour suspicion towards Mr Loots, whom I trusted to give me educated advice and help me through a tormented and trying time.”
On 26 November 2009 Jeremy Muller SC, chairperson of the Cape Bar Council wrote to Mills to say: “I discern no misconduct on the part of Mr Loots and I have accordingly decided to dismiss the complaint.”
He invited Mills to file an appeal within 15 days. When noseweek asked Muller how it was that, faced with two contradictory versions of events, he found for the advocate, he declined to comment, saying an appeal was still possible. He added: “I did not discuss the matter with Mr Loots prior to dismissing Mr Mills’ complaint against him.”
When noseweek asked Loots for comment, he reiterated that Mills had been a willing party to the settlement, and had accepted it because he couldn't afford a costs order against him. According to Loots this “was the only can of worms that could have been opened”. He insisted that his speciality is commercial law and delict, and that he’s never acted for Portnet, though he once acted for Transnet Property Division.
As regards the fee, he said he’d been asked if he would do the matter on a contingency basis, but no contingency fee agreement was signed. Had Mills won, Loots would have been paid his “normal fee”, but, because the matter was settled, he earned no fee at all – despite the fact that “a considerable amount of time and effort had therefore gone into the matter prior to its settlement”.
Noseweek also spoke to Mzo Mtikitiki, now at De Beers, but he had nothing to add – as far as he could recall, the matter had been resolved on the day of the hearing.
Mills – who is down R1m in legal fees, or R2m if you take into consideration what he spent on the boat – also lodged a complaint to the Cape Law Society about attorney Bennie van der Hoven, asking for help.
The answer: “Should an attorney be found guilty of unprofessional conduct, the likely sanction is a fine. We are therefore not permitted to give legal advice nor render legal assistance [...] we suggest that you approach an attorney for legal advice.”
Mills’ response to the Society was that he had approached them “as a cry for help – not to get even with someone – a very simple plea of ‘what do I do now to find relief?’.
“I very clearly stated that I have lost all faith in our legal system – and understandably so – and your only advice is that I should approach an attorney for legal advice – a comforting slap in the face, to say the least.”
"I have no faith in our legal system" – now that’s a cry heard with depressing regularity. | 
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