THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JS162/24
In the matter between:
EDWARD MAHOFA Plaintiff
and
PROTOBAC (PTY) LTD First Defendant
THE PACIFIC CIG ARETTE COMPANY (PTY) LTD Second Defendant
Heard: 18 February 2025
Delivered: 3 March 2025
JUDGMENT
MAKHURA , J
2
[1] These interlocutory proceedings relate to an exception taken by the defendant
against the plaintiff’s amended statement of claim dated 1 July 2024.
[2] In April 2024, t he plaintiff referred a claim for payment o f accrued leave and
payment of salary in terms of the Basic Conditions of Employment Act1 (BCEA) . This
was met with a notice of exception to the statement of claim by the defendants. The
plaintiff filed a notice of amendment, which the defendants elected not to object to. On 1
July 2024, the plaintiff effected the amendments and filed an amended statement of
claim .
[3] In response, the defendants have again raised an exception against the plaintiff’s
amended claim on the grounds that his claim does not disclose a cause of action and/or
is vague and embarrassing.
[4] In terms of the amended claim, the plaintiff seeks payment of R79 649.86 in
accrued leave against the defendants jointly and severally the one paying the other to
be absolved. The plaintiff further seeks payment of R1 380 810.00 in unpaid salary
against the second defendant .
[5] The plaintiff claims that he was employed by the two defendants with effect from
1 June 2022. He referred to a contract of employment concluded and signed between
him and the first defendant. This contract of employment with the first defendant
provides that he is employed as a “ Finance Controller (Proto & PCCSA) ”.
[6] With regard to the claim for accrued leave payment, t he plaintiff alleged that
during his employment, he accrued 18.75 leave days . He then claimed that an amount
of R79 649.86 in unpaid leave is due and payable and that the first and second
defendants “are liable to pay [his] accrued leave, the one paying the other to be
absolved” and that , because he was employed by and worked for both defendants, one
of them, should be liable to pay the amount.
1 Act 7 5 of 1997.
3
[7] The defendants noted that the plaintiff seeks payment of this amount from both of
them jointly and sever ally. They contend that the plaintiff has failed to plead the basis
for their joint and several liability . The defendants referred to the contract of employment
and contended that the plaintiff was employed by the first defendant and that the
second defendant was not a party to the contract of employment and therefore not his
employer . The defendants also contend that the plaintiff ’s salary was paid by the first
defendant and that his UI19 form also indicated that his em ployer was the first
defendant.
[8] In conclusion, t he defendants contend that ex facie the contract of employment,
the pays lips and UI19 form , the plaintiff was employed by the first defendant . Therefore,
his amended claim does not disclose a cause of action for a joint and several liability
between the first and second defendants for his accrued leave claim.
[9] The second claim is one of non- payment of salary. The plaintiff claims that he
earned a monthly salary of R92 054.00. The first defendant, the plaintiff alleges, paid
him his full salary but the second defendant did not . He raised grievances which were
not attended to. He then alleges that he worked for a period of 15 months and that the amount due, owing and payable by the second defendant is R1 380 810.00.
[10] In excepting to the non- payment of the claim, the defendants contend that the
amended claim does not disclose a cause of action alternati vely is vague and
embarrassing. The plaintiff, despite his allegation that he was employed by both
defendants and that he was paid his full salary by the first defendant, failed to plead any
basis upon which the second defendant should be held liable to pay him the salary.
[11] The plaintiff’s opposition to the exception is primarily based on the submission
that the defendants ’ second exception was improper. He argued that the defendants
were precluded from raising a second exception based on similar grounds as the first
exception because he has , so continued the argument , considered and addressed the
4
issues in the first exception notice through the amendment process and the defendants
failed to object to the notice of amendment. The plaintiff could not refer to any authority
that supports this legal proposition. This contention is untenable and unsound in law. It
would be absurd to deny a defendant an opportunity to raise an exception to a claim
that ex facie does not disclose a cause of action and in the process force him to plead
to a non- claim or a vague and/ or embarrassing claim.
[12] The plaintiff argued that he made the necessary averment to disclose the cause
of action in respect of his two cl aims. With regard to the accrued leave claim, the
plaintiff contends that the contract of employment was concluded with the two
defendants and that he made the necessary calculations for the claim and t he joint and
several liability.
[13] The plaintiff ’s opposition to the exception against the alleged non- payment of
salary is that the claim is only against the second defendant, that he had calculated his claim and that the second defendant’s liability is its failure to pay him the salary.
[14] Exceptions are to be dealt with sensibly. Their purpose is to raise a substantive
question of law in order to weed out a case or part of it that is without legal merit and to
protect an excipient from embarrassment if he is to plead to the claim . They therefore
have the potential to bring a case to an end. A party should not raise it as a technicality
because that would defeat its purpose. The test is whether on all possible readings and
interpretations of the facts as plead ed, the document does not disclose a cause of
action or defence. The court is only limited to considering the exception on the pleading
that is being excepted to and nothing else.
2
[15] The contract of employment was concluded between the plaintiff and the first
defendant and was signed by the first defendant as the employer and the plaintiff as the
2 For a summary of the legal principles applicable to exceptions, see Living Hands (Pty) Ltd and Another v
Ditz and Others [2012] ZAGPJHC 218; 2013 (2) SA 368 (GSJ) at para 15, and the cases referred therein
by Makgoka J (as he then was); Telematrix (Pty) Ltd v Advertising Standards Authority SA [2005] ZASCA
73; 2006 (1) SA 461 (SCA) at para 3.
5
employee of the employer. The contract of employment states that the plaintiff was
employed as a Finance Controller (Proto & PCCSA) . Other than the reference to the
fact that the contract of employment clearly stipulates that the plaintiff’s employer is the
first defendant. It is signed between the plaintiff and the first defendant. Nowhere in the contract is the second defendant referred to as a joint employer with equal responsibilities and/or liabilities to the plaintiff.
[16] The question then is, what would be the basis of the plaint iff claiming a joint and
several liability for accrued leave against a company that is not and that he had failed to
establish that it is his employer. Secondly, on what basis would the plaintiff claim any
salary payment, or any payment for that matter, against a c ompany that never
employed him?
[17] The plaintiff fundamentally misconstrued the defendants’ exception against his
two claims. The crux of the two points raised by the defendants is the contract of employment. Ultimately, the plaintiff should have pleaded the necessary facts to sustain the allegation that he was employed, not only by the first defendant but also by the
second defendant.
[18] The plaintiff’s salary was paid by the first defendant, nothing in his claim
establishes any form of relationship with the second defendant for him to claim a joint
and several liability on the accrued leave pay claim and for payment of his salary. Further, he makes no allegation on what basis he is entitled to payment of salary from
the second defendant when he had received his salary from the first defendant, his
employer . His allegation that he was employed by the second defendant is , ex facie the
statement of claim together with the documents, an illusion. The plaintiff may have a
claim against the fir st defendant for accrued leave pay, however, that is not what the
defendants raised as an exception.
[19] Accordingly, I am satisfied that the plaintiff’s amended statement of claim does
not disclose a cause of action for the joint and several liability in respect of the accrued
6
leave pay claim . The plaintiff conceded that he received his full salary from the first
defendant. The amended statement of claim together with the documents attached
show ex facie that he was employed by the first defendant. Nowhere in the contract is
there a provision that he employed by the second defendant. His claim for salary
payment from the second defendant is bad in law . The defendant’s exception must
therefore be upheld and the plaintiff’s claim as amended must be struck out for failing to
disclose a cause of action.
[20] Both parties sought costs. The plaintiff sought costs on an attorney and client
scale. The defendant only sought costs on a party and party scale.
[21] In the premises, the following order is made:
Order
1. The defendants’ exception is upheld.
2. It is declared that the plaintiff’s amended statement of claim does not
disclose a cause of action in respect of the two claims and the claims are struck
out.
3. The plaintiff is granted leave to amend his amended statement of claim
dated 1 July 2024 within 15 days of receipt of this judgment .
4. The plaintiff is ordered to pay the defendant’s costs.
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Plaintiff : Ms B Vos of CGG Inc. Attorneys
For the Defendants : Mr L Hollander
Instructed by: Swartz Weil Van der Merwe Greenberg Inc.