IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO:
In the matter between:
UMBILO MOTORS (PTY) LTD PLAINTIFF
and
SAM LEWIS FIRST DEFENDANT
SENTINEL HAULERS (PTY) LTD SECOND DEFENDANT
DEFENDANT’S PLEA
The Defendants plead to the Plaintiff's particulars of claim as follows:
1. AD PARAGRAPH 1
The contents are admitted.
2. AD PARAGRAPH 2
2.1. The contents are specifically denied.
2.2. Sentinel pleads that:
2.2.1. The Plaintiff's claim that they only sell diesel is false and misleading.
2.2.2. This false statement is proved by the fact that Sentinel's truck was filled with
petrol at the Plaintiff's premises.
2.2.3. Independent expert analysis has confirmed the presence of petrol in the
engine.
2.2.4. Therefore, the Plaintiff must necessarily stock and sell both diesel and petrol.
2.2.5. This deliberate misrepresentation brings into question the credibility of the
Plaintiff's entire case.
3. AD PARAGRAPH 3:
The contents are admitted.
4. AD PARAGRAPH 4:
The contents are admitted.
5. AD PARAGRAPH 5:
The contents are admitted.
6. AD PARAGRAPH 6:
The contents are admitted. Sentinel acknowledges receiving the account for
R680,000 for fuel delivered during February 2015.
7. AD PARAGRAPH 7:
The contents are admitted. However, Sentinel has withheld payment due to the
damages suffered because of the Plaintiff's negligence, as detailed in the
counterclaim below.
8. AD PARAGRAPH 8:
The contents are admitted.
9. AD PARAGRAPH 9:
9.1 The contents are denied.
9.2 Sentinel specifically pleads that:
9.2.1. Its driver explicitly requested diesel fuel from the Plaintiff's attendant.
9.2.2. An independent expert has confirmed the presence of petrol in the engine.
9.2.3. The expert has confirmed that the wrong fuel type caused the damage.
9.2.4. The Plaintiff was the only fuel supplier used by Sentinel during this period.
10. AD PARAGRAPH 10:
10.1 The contents are denied.
10.2 Sentinel pleads that the Plaintiff is liable for the repair costs as:
10.2.1. The damage was directly caused by the supply of incorrect fuel.
10.2.2. A mechanical expert has assessed and confirmed the repair costs of
R320,000.
11. AD PARAGRAPH 11:
The Plaintiff's claims are denied as Sentinel is entitled to set off its damages against
the amount claimed.
WHEREFORE the Second Defendant prays that the Plaintiff’s claim be dismissed
with costs.
DATED at Johannesburg on this 08th Day of May 2015
Defendant’s Attorney
Cornerstone Law Associates
6 Eton Road Parktown
Johannesburg
2193
[email protected]
[ 012 936 8389]
To:
Plaintiff’s Attorney
Harmony Hope Attorneys
16 Cedar Avenue Auckland Park
Johannesburg
[email protected]
AND TO:
The Clerk of the above Honourable Court Johannesburg
COUNTERCLAIM
1. The Defendant is Sentinel Haulers (Pty) Ltd a private company duly
incorporated in terms of the Companies Act 71 of 2008 with company
registration number: 2014/654321/07, with principal place of business at 50
Industrial Avenue, Germiston, Johannesburg.
2. The Defendant’s primary business operations is in logistics, managing
deliveries for major commercial enterprises.
3. The Defendant and the Plaintiff entered into a credit agreement under which
the Plaintiff would supply diesel for the Defendant’s trucks.
4. As part of the credit agreement with the Plaintiff, Sam Lewis, a director
employed by the Defendant, signed a deed of suretyship and agreed to act as
a co-debtor for all amounts owed by the defendant to the plaintiff.
5. On the 16th of February 2015, one of the Defendants drivers went to the
Plaintiff’s fuel station to refuel diesel as agreed upon. However, the Plaintiff’s
employee mistakenly and negligently filled the truck with petrol instead of
diesel.
6. The Defendant’s driver asserts that he clearly and firmly instructed the petrol
attendant on duty to fill the truck with diesel, however, the attendant still
proceeded to fill the truck with petrol.
7. Under the assumption that the attendant had filled the truck with diesel, the
driver left the station. However, this led to damage to the truck.
8. The truck ceased operating, and an independent expert’s assessment
confirmed that the damage was caused by petrol in the engine.
9. The Defendant had to find a mechanical expert to repair the truck, which
incurred costs amounting to R320 000.
10. The Defendant is a logistics company that relies heavily on the trucks for
generating income. However, due to the Plaintiff’s negligence the truck was
not operating for three days, which resulted in financial losses for the
Defendant.
11. The Plaintiff must be held liable for damages caused by the petrol attendant,
as he was acting within the scope of his duties when the negligence incurred.
Consequently, the Plaintiff is vicariously liable for losses suffered by the
Defendant.
WHEREFORE the Defendant prays for judgement against the Plaintiff as follows:
1. Costs for the repair of the truck for R320 000.
2. Repudiation of the credit agreement between the Plaintiff and the Defendant.
3. Financial losses suffered by the Defendant amounting to R250 000.
4. Interest on the aforesaid amount at the prescribed rate of 10.75% per annum
from the date of judgement to the date of payment.
5. Costs of suit.
6. Further and/or alternative relief.
DATED at JOHANNESBURG on this 08th day of May 2015
Defendant’s Attorney
Cornerstone Law Associates
6 Eton Road Parktown
Johannesburg
2193
[email protected] [ 012 936 8389]
To:
Plaintiff’s Attorney
Harmony Hope Attorneys
16 Cedar Avenue Auckland Park
Johannesburg
[email protected]AND TO:
The Clerk of the above Honourable Court Johannesburg
