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........................................................................................................................lst Applicant

DHLADHLA, ZETHENBE DAN.....................................................................................2nd Applicant

DHLADHLA, SIPHO.........................................................................................................3rd Applicant

DHLADHLA, VUS1............................................................................................................4th Applicant

And

B P SOUTHERN AFRICA (PTY) LTD...............................................................................Respondent

In the matter between:

BP SOUTHERN AFRICA (PTY) LTD.......................................................................................Plaintiff

STATION CC......................................................................................................................1st Defendant

DHLADHLA, ZETHENBE DAN.....................................................................................2nd Defendant

DHLADHLA, SIPHO........................................................................................................3rd Defendant

DHLADHLA, VUSI...........................................................................................................4th Defendant

JUDGEMENT

This is an action which was set down for hearing on the 18Ih 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 Is' 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