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2026
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[2026] ZAGPJHC 169
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Mphachoe v 3rd Generation Industries (Pty) Ltd (A2024/093912) [2026] ZAGPJHC 169 (24 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: A2024-093912
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
NO
In
the matter between:
ITUMELENG
THABO MPHACHOE
Applicant
and
3RD
GENERATION INDUSTRIES (PTY) LTD
Respondent
JUDGMENT
DREYER AJ
[1]
The Applicant, Mr Mphachoe, seeks leave to
appeal our judgment of 19 December 2025, contending that there
are various grounds
based in fact and on law on which leave to appeal
should be granted.
[2]
In terms of
section 17
of the
Superior
Courts Act 2013
:
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(a)
(i) the appeal would have reasonable prospects of
success; or
(ii)
there is some other compelling reason why the appeal
should be heard, including conflicting judgments on the matter
under
consideration
.”
[3]
The Applicant contends that the appeal has
reasonable prospects for success. We disagree.
[4]
The judgment of 19 December 2025 was based
on the evaluation of the evidence before the Court
a
quo
. The Applicant, as the
Plaintiff before the Trial Court, bore the evidential burden to show
that he had suffered contractual
damages arising from the
Respondent’s breach of an agreement of 3 June 2019 to service
his motorcycle. This was the
case the Respondent was called to
meet. As stated in paragraph 34 of our judgment, there was no
evidence that the service
the Respondent performed was done
incorrectly or defectively, or that it caused the motorcycle’s
engine to malfunction.
To the contrary, the Applicant’s
own expert, Mr Morais, acknowledged that the clutch was correctly
installed and, in his
words, he called it a “good job”.
Mr Morais conceded, in cross-examination, that the emptying of a sump
is not
stipulated as a requirement in the workshop manual when
replacing a clutch, but, in his view, it was common sense to do so
and
negligent not to do so.
[5]
The Trial Court accepted the opinion of Mr
Morais on this point. However, this was not a pleaded issue for
determination by
the Trial Court.
[6]
Mr Morais’ opinion, that the cause of
the motorcycle engine malfunction was clutch material left from the
removed clutch blocking
the sieve, was not supported by any evidence
before the Trial Court establishing that such material was clutch
material, least
of all clutch material from the clutch which was
removed by the Respondent on 8 June 2017. The only “
test
”
Mr Morais conducted was a finger test, where he rubbed the material
between his fingers. As such, the finger test
Mr Morais relied
on was of no assistance to the court to determine the cause of the
engine’s malfunction.
[7]
The Applicant placed no evidence before the
Trial Court in support of the opinion asserted by Mr Morais.
The Applicant, as
dominus litis
,
failed to discharge the evidentiary burden which he bore.
[8]
As stated in our judgment, there was
insufficient evidence before the Trial Court to find that the
Respondent’s failure to
remove the sump and the oil sieve, when
replacing the clutch, was the cause of the engine of the motorcycle
seizing.
[9]
The Applicant contends that there are
reasonable prospects for success that another court would find that
our judgment was incorrect
in accepting the opinion of Mr Zeeman.
As stated in our judgment, Mr Zeeman’s evidence as an expert,
his expertise
as a motorcycle technician and his knowledge of the
facts were not challenged under cross-examination. In such
circumstances and
where Mr Zeeman’s actual evidence has shown
no bias in Respondent’s favour, there are no prospects of
success that
another Court would reject Mr Zeeman’s evidence as
an expert in the manner that the Trial Court did.
[10]
For these reasons, leave to appeal is
refused.
[11]
In the result, we make the following order:
1.
Leave to appeal is refused;
2.
The Applicant is directed to pay the
Respondent’s costs occasioned by the application for leave to
appeal, including the costs
of counsel on Scale C.
C DREYER AJ
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
I
agree
MMP
MDALANA -MAYISELA J
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
Date
of hearing:
Date
of delivery:
For
the Applicant:
Attorney E M Dlamini
Instructed by Bouwer
Cardona Inc
For
the Respondent:
Adv C D Roux
instructed by RC Christie
Inc