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[2010] ZAGPPHC 644
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Teanong Petrol Filing & Service Station CC and Others v BP Southern Africa (Pty) Ltd; In re: BP Southern Africa (Pty) Ltd v Teanong Petrol Filing & Service Station CC and Others (33711/02) [2010] ZAGPPHC 644 (5 March 2010)
IN
THE NORTH GAUTENG HIGH COURT PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 33711/02
DATE:
5 MARCH 2010
In
re:
TEANONG
PETROL FILLING & SERVICE
STATION
CC
........................................................................................................................
l
st
Applicant
DHLADHLA,
ZETHENBE
DAN
.....................................................................................
2
nd
Applicant
DHLADHLA,
SIPHO
.........................................................................................................
3
rd
Applicant
DHLADHLA,
VUS1
............................................................................................................
4
th
Applicant
And
B
P SOUTHERN AFRICA (PTY)
LTD
...............................................................................
Respondent
In
the matter between:
BP
SOUTHERN AFRICA (PTY)
LTD
.......................................................................................
Plaintiff
And
TEANONG
PETROL FILLING & SERVICE
STATION
CC
......................................................................................................................
1
st
Defendant
DHLADHLA,
ZETHENBE
DAN
.....................................................................................
2
nd
Defendant
DHLADHLA,
SIPHO
........................................................................................................
3
rd
Defendant
DHLADHLA,
VUSI
...........................................................................................................
4th
Defendant
JUDGEMENT
This
is an action which was set down for hearing on the 18
Ih
of
February 2010. At the calling of the roll the Defendant presented an
application for relief including a postponement of the
trial action
sine die with costs to be reserved for determination by the trial
court. The matter was then referred to me and argued
at some length
by the parties.
The
Notice of Motion in addition to prayer 2, the prayer for a
postponement, contains two other prayers. The first prayer is for
an
order directing the Plaintiff to deliver an Affidavit in response to
the Applicant’s Notice in terms of Rule 35(3) dated
the I
s
'
of February 2010 and to comply with Rule 35(6) within 10 days of the
order. This relief the Defendant seeks with an order that
the
Plaintiff is to pay the costs of this component of the application
The third prayer is one that the Plaintiffs claim against
the Second
to Fourth Defendants and ordering the Plaintiff to pay their costs of
the trial action and this component of the application
on the scale
as between attorney and own client.
As
far as the prayers other than that for a postponement are concerned,
they appear to be unwarranted and insubstantial and included
merely
as makeweight. The Defendants Notice in terms of Rule 35(3) was
served at a late stage and the Plaintiff was not required
to make
discovery as requested therein and before the date for hearing of the
trial. In any event the documents which the Defendants
claim have not
been discovered are the Plaintiffs bank statements.
I
am not satisfied that the bank statements should have been considered
discoverable by Plaintiff. If Defendants wish to prove payment
for
the materials which were delivered they should have documentary proof
in their possession and their own records of the transactions
in
respect of which payment was made.
That
the Notice was not timeously given is attributable to the nonchalant
manner in which the Defendants have prepared or rather
not prepared
for the trial of this matter Nonchalance and lack of attention appear
from the Affidavit upon which the Defendants
base the application.
The Defendants' attorney before the trial had withdrawn and refused
to act on the Defendants’ behalf
in the absence of the payment
of a substantial deposit. This is referred to in the Affidavit. Only
at a late stage the Defendants
found the necessary finance to proceed
with their defence and briefed counsel at the last moment when
significant preparation was
not possible.. Realistically from the
Plaintiff s point of view its bank statements play no part in the
advancement of any party’s
case
It
is not surprising that the application for a postponement was only
made after counsel had been briefed. The Affidavit was signed
one day
before the trial date and the Notice of Motion was signed on the date
of trial I am convinced that if the Defendants had
taken preparation
for trial with due diligence the postponement would not have been
necessary.
ORDER:
The
Defendants must pay the Plaintiffs wasted costs occasioned by the
postponement No order is made regarding prayers 1 and 3.
ATTORNEYS
FOR THE PLAINTIFF:
EDWARD
NATHAN SONNENBERGS c/o EDELSTEIN-BOSMAN INC
220/2
Lange Street New Muckleneuk PRETORIA
Ref:
Mr N van den Heever/R'BSOO 1532
ATTORNEYS
FOR THE DEFENDANTS:
FLUXMANS
INC
JOHANNESBURG
Tel: 011-3281700 Ref: Shoot/cr/D46/-4/79078 c/o FRIEDLAND HART INC
Suite 301. Block 4 MONUMENT OFFICE PARK
79
STEENBOK AVENUE
MONUMENT
OFFICE PARK
PRETORIA
TEL:
012-424-0200
Ref:
Mr G Pienaar
COUNSEL
FOR THE PLAINTIFF: J H STROH SC
S
T FARRELL
COUNSEL
FOR THE RESPONDENT: R J GROENEWALD