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| Liz, Kevin and Connor Davis |
The law, they say, is an ass. Perhaps theyre being kind. When a woman who wants nothing more than to get out of a marriage gone wrong is locked into legal proceedings for four years, relieving her of her assets, the legal system is more than asinine. Its a disgrace.
Liz Davis is a Scot who came to South Africa in 1984, returning in 1990 to the UK where she met and married Englishman Kevin Davis. The couple first moved here in 1997, first to Plettenberg Bay, and then to Hout Bay where Liz bought a guest house called Hattons. The couples son Connor was born in 2001.
Liz decided to create a string of guest houses stretching from Hout Bay up the Garden Route, with each guest house directing guests to the next one. So when the guest house Cliff Cottage came up for sale in Hermanus, Kevin loaned Liz most of the purchase price, and the property was registered in her name.
However, shortly after the purchase of Cliff Cottage, the couple decided to get divorced. They agreed not to use lawyers and Liz bought a DIY divorce book from CNA and prepared a draft settlement agreement. Liz would have custody of Connor, with Kevin having reasonable access, and Kevin would stay on in Cliff Cottage.
But things took a new turn when Kevin consulted attorney Charl Smith-Symms of Somerset West, who told him the agreement Liz had drawn up wasnt legally binding, and in 2004 Kevin instituted divorce proceedings. Upset that Kevin had involved lawyers, and that he no longer wished to receive guests from, and send guests to, Hattons, Liz demanded that he leave Cliff Cottage. In response Kevin applied for an interdict to prevent Liz from selling the property. When the matter came before acting Judge Fortuin, Liz represented herself but Kevin was represented by counsel. Liz won the case and the application was refused, with costs which she interpreted as judicial acceptance that Cliff Cottage was hers.
Unfortunately the court order had no practical effect, and Kevin remained at Cliff Cottage. When Liz retrieved her furniture from Cliff Cottage, Smith-Symms retaliated: he instructed the Wynberg sheriff to get it back and the sheriff kicked down Lizs door in the process. And when Liz had an attorney go to Cliff Cottage to access the visitors book, Smith-Symms obtained an order banning Liz from setting foot in Cliff Cottage. She believes that Smith-Symms couldnt accept that shed won the court proceedings, and that he set out to derail her life.
But things were about to get even messier: after some nasty correspondence, Kevin decided to claim sole custody of Connor.
The case was heard by acting Judge Rosette Mlonzi who ruled that Liz should get sole custody, with Kevin having reasonable access but the case cost Liz some R800,000, and as the issue of who should pay the costs wasnt argued, she had to foot the whole bill.
In March 2007 the parties went back to court and this time Liz had to rely on her junior counsel, Alma De Wet, as she could no longer afford a senior. On De Wets advice, Liz allowed the divorce order to be issued without the financial issues being finalised.
In June 2007 the financial issues came up for trial: at stake were the ownership of Cliff Cottage, maintenance for Liz, and the validity of an agreement Kevin had made in an affidavit to pay Liz the proceeds of the sale of one of his London flats over £150,000.
Unfortunately, the inexperienced Judge Mlonzi was unable to control Kevins advocate, Kosie Olivier SC, and Lizs advocate, Alma De Wet, made only ineffective attempts to do so. So Olivier cross-examined Liz for nearly two weeks, and the matter was postponed for five months.
In September 2007 Liz was forced to sell Hattons Guest House, her only source of income. Increasingly desperate, she brought an application for interim maintenance in November 2007. No longer able to afford lawyers, Liz represented herself, and came up against the formidable team of Kosie Olivier SC and Charl Smith-Symms. It didnt take much persuading from Olivier SC for Judge President Hlophe to agree that the matter be held over until the postponed financial issues trial came up during the following month.
On 3 December 2007, Liz went to court carrying a suitcase of legal files. Kevin was represented by his usual team and everyone sat in court for a while until the message came through that Acting Judge Mlonzi was in the Eastern Cape. Olivier SC called Ms Mlonzi from his cell phone and agreed to postpone the case yet again yes I sympathise mlady, I have a very busy schedule too, and no, dont worry mlady, and so on.
Liz demanded that they go and see Judge Hlophe, but he dismissed the matter as a mere misunderstanding. And the Registrar told Liz she would lose her job if she were to ask a judge why she didnt pitch up. The matter was postponed until June 2008.
For a while Liz thought seriously about once again representing herself, but decided against it. She began to instruct Van der Spuy in Cape Town, but the firm wanted a R100,000 retainer, which she couldnt afford, and then sent her a bill for R30,000 for the work they had done. When she was unable to pay, Van der Spuy held on to her documents as security.
But she needed proper representation, mainly because she would be unable to argue legal technicalities around payment of costs. So Liz pleaded with Herbert Raubenheimer SC to return to the case.
Raubenheimers response was decidedly cold: You decided, for financial reasons, not to proceed with a senior and junior advocate. Please accept that I cannot act on your behalf.
Liz eventually had to pay some R300,000 to attorney Andre du Toit and advocates Roelof van Riet SC and Paul Tredoux, just to get them to get up to speed with the case (photocopying alone came to R27,000), but she couldnt raise their R500,000 trial fee. So, in June, the matter was again postponed, this time until November.
Now at the end of her tether, Liz lodged a complaint about Ms Mlonzi with the Judicial Services Commission, but received only a mealy-mouthed response from one Mariska van Zweel: The Judicial Services Commission only have jurisdiction to entertain complaints lodged against permanently employed judges. Please refer a detailed complaint to Acting Judge Mlonzis professional body, the Law Society of the Eastern Cape, and send a copy of your complaint to Acting Judge President Traverso.
Although this seemed to Liz to be as useful as pissing in the wind, she did lodge a complaint with the Cape Law Society, requesting the recusal of Ms Mlonzi. The response from the Law Societys Peter Pearson was all too predictable: …notwithstanding the information given to you by the Judicial Services Commission, we do not in fact have any disciplinary or other jurisdiction in respect of attorneys whilst they are acting as judges. We therefore believe that you should address your complaint to the Minister of Justice and/or the Acting Judge President of the High Court.
Judge Jeanette Traversos response: Unfortunately there is nothing that I can do while the case is still before Acting Judge Mlonzi. The only manner in which another judge can become involved is if you should successfully apply for her recusal, which will no doubt lead to further delays and additional costs.
So Liz Davis has, to date, spent some R2m on legal costs almost her entire resources with little result. She has no idea whether or not she will get Cliff Cottage, or maintenance, or a share of the sale on Kevins London flat. Her health has suffered badly. As a 50-year old woman with no professional training she is nigh unemployable. All she has left is the two-bed unit in Hout Bay where she and Connor live, which she may well have to sell, simply to survive.
One reply on “Breaking up is hard to do”
I have thought long and hard about adding a comment to your article. I am in the process of being divorced (although to be honest – after 17 months, we haven’t got out of the starting blocks)! I thus do not wish to complicate issues.
My wife decided to ask Mr. Smith- Symms (SS) to represent her. The whole process has been characterised by confrontation, aggression, inefficiency, and conflict. At one stage all lines of communication- other than through SS’s office – were cut. What initially was a fairly amicable and inevitable development turned into a nightmare.
SS has been obstructive, rude and inefficient. Despite being timeously given all documentary evidence for review, at every stage that negotiations regarding settlement seemed likely, he was unprepared and had not even opened the files! This happened when an appointment had been made with Senior Counsel for the express purpose of settlement negotiation. An expensive waste of time and effort – solely due to SS’s inefficiency.
I have made both direct and indirect investigations about several other similar cases and his behaviour is the same. It seems that he will protract issues in order to create more work and delay their processing.
This of course massively increases the expenses – to whose benefit and to whose deleterious effect? He advises his clients to resist Mediation like the plague – on the nebulous grounds that the Mediator does not act in his client’s interests. (Mediators should be neutral – acting in all parties interests in order to achieve an agreement.)
He is provocative, dilatory, obtusive and insulting. He prevaricates when asked a direct question and is inefficient when making assessments regarding Accrual. In fact he makes everyone’s life difficult, and does not try to assist in the resolution of an emotionally charged and difficult event that plagues the majority of marriages that run into difficulties.
He will defend himself aggressively with the argument that he is acting in his client’s best interests. This is a difficult defence to attack. But in essence, and my opinion and experience, he is acting in no-one’s defence other than his own and his bank balance.
This is a common theme running throughout the anecdotal stories that I have been priviledged to hear. He provokes his clients into recalcitrance and unco-operativeness and confrontation. He advises them to cut lines of communication, and to resist any negotiations. He drags things out with his (willful?) inefficiencies so as to prolong the process and emotional storm in an attempt to wear the defendants down. As a side effect – this results in more work and more income!
In the final result, agreements reached have not differed significantly from those originally proposed. So why does he behave thus?
In my opinion – it is to line his pockets! And I have intentionally used the plural in the last sentence as a single pocket would not be large enough!
To my mind, an ethical lawyer should look to resolve this type of emotionally charged and difficult situation to the benefit of the parties and the families concerned; looking to achieve a fair, reasonable and sustainable agreement to all parties, in the most cost effective manner possible. SS falls way short of this.
I accept that a lawyer should protect the client from abuse and prejudice – but to provoke and incite and promise unrealistic benefits to the client is terrible. And this is what SS does.
In my humble opinion (and from my own experience and that of several others) what SS does is morally reprehensible and ethically bankrupt.
As to the rest of the events that happened in the above story, I suppose it could be put down to runs of bad luck- inexperienced judge, the judicial regulators ducking and diving, representation not up to the calibre of the litigant’s team, etc. But again the theme of manipulative and obstructive behaviour remains, resulting in the inevitable prolongation of the matter.
The question that immediately arises is what can the layman do about it? And the answer is – very little, other than to expose this through the media. Litigation is time consuming and expensive and exhausting. So thank you for your expose.
In view of the ongoing procedures in my situation, I would request that should you decide to publish this comment you withold my name and details?
I shall be happy to provide you with any further information or contacts should you wish to seek corroboration.
Sincerly,
Ted Blaine.