REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case No: 2024-055209
In the matter between:
MJAJU JOSEPH MATHE Applicant
and
HOYA LENS SOUTH AFRICA Respondent
JUDGMENT
READ A.J
INTRODUCTION
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
05 September 2025 __
DATE SIGNATURE
2
1. Before this Court is an application in which the applicant seeks compensation
in the amount of R140,874.12, representing 12 months' salary for loss of
income, and a declaration that the termination of his employment was unlawful.
2. The respondent has raise d several points in limine , namely lis pendens,
urgency, and material disputes of fact. The urgency point has already been
disposed of, with the matter having been struck from the roll on 4 June 2024 for
lack of urgency.
POINTS IN LIMINE
First Point in limine: Lis Pendens
3. The respondent contends that this application should be dismissed on the basis
of lis pendens , arguing that the same dispute is pending before the Labour
Court in a review application arising from CCMA proceedings.
4. The requirements for a valid plea of lis alibi pendens are well -established.
In Williams v Shub1, the court held that the requisites are that the actions must
be between the same parties, on the same cause of action, and in respect of
the same subject matter.
5. However, the Supreme Court of Appeal in Makhanya v University of
Zululand2 established the important principle that an employee may pursue
1 1976 4 All SA 449 (C )
2 2009 ZASCA 69
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both an unfair dismissal claim under the LRA and a separate contractual claim
for breach of contract. The court stated:
"[I]t is true that a litigant who has a single claim that is enforceable in two courts
that have concurrent jurisdiction must necessarily make an election as to which
court to use... But it is altogether different when a litigant has two distinct claims,
one of which may only be enforced in one court, and the other of which may be
enforced in another court."3
6. This principle was further developed in Archer v Public Schoo l4 where the
Labour Appeal Court confirmed that contractual claims arising from
employment termination are distinct from unfair dismissal claims under the
LRA. Section 195 of the LRA explicitly provides that compensation awards
under the LRA are "in addition to, and not a substitute for, any other amount
which the employee is entitled to in term s of any law, collective agreement or
contract of employment."
7. The lis pendens point lacks merit. The applicant's contractual claim for breach
of contract is legally distinct from his unfair dismissal claim in the CCMA/Labour
Court. Different causes of action are involved, even though arising from the
same factual matrix.
Second Point in Limine: Material Disputes of Fact
8. The respondent argues that material disputes of fact exist that cannot be
resolved on the papers, requiring the matter to be referred to trial.
3 2009 ZASCA 69, para 61
4 2020 41 ILJ 610 LAC.
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9. The applicable legal principles are well -settled in Plascon-Evans Paint Ltd v
Van Riebeck Paints (Pty) Ltd 5, where the court established that in motion
proceedings, a final order can only be granted if the facts averred in the
applicant's affidavits, together with admitted facts and the respondent's version,
justify such an order.
10. From the papers, several material factual disputes emerge:
10.1 Inconsistent versions by the applicant: In the CCMA proceedings, the
applicant indicated that the dismissal was procedurally and substantively
fair but claimed discrimination. In this application, he alleges the
dismissal was unlawful.
10.2 Alleged verbal contract: The applicant alleges a verbal contract was
concluded on 1 February 2021, which is denied by the respon dent.
However, the applicant fails to plead essential terms such as the place
where the agreement was concluded, the parties to the agreement, and
the specific terms.
10.3 Circumstances of termination: Conflicting versions exist regarding the
manner and reason for termination.
11. The case of Greyling v George Randell High School 6 provides guidance on
when material disputes should be referred for oral evidence. The court noted
that an application for oral evidence should generally be made in limine, and
not when it becomes clear that the applicant is failing on the papers.
5 1984 ZASCA 52.
6 2023 44 ILJ 1254 LC.
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12. Material disputes of fact exist that cannot be satisfactorily resolved on the
papers. However, the application fails for other reasons addressed below.
THE MERITS
Breach of Contract Claim
13. For a successful breach of contract claim, the applicant must prove:
13.1 The existence of a valid contract
13.2 Breach of that contract
13.3 Damages suffered
13.4 Causal link between breach and damages
14. Contract: It is common cause that an employment contract existed between
the parties.
15. Breach: The applicant makes "sweeping statements" that changes were made
to the employment contract constituting breach, but fails to particularize the
specific breaches alleged.
16. Damages: The applicant claims R140,874.12 but provides no explanation or
evidence of how this amount was quantified or his entitlement thereto. There
is no explanation why the claim is not brought by way of action rather than
application.
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17. Causation: The applicant has failed to establish any causal link between the
alleged breach and the damages claimed.
18. An applicant is required to set out all of the facts upon which it relies to
support a cause of action in its founding affidavit.
PROCEDURAL CONSIDERATIONS
Forum Shopping and Abuse of Process
19. The conduct of the applicant raises concerns about potential forum shopping
and abuse of process. In Painter v Strauss7 , the court held:
"To bring two actions in one Court in regard to the same matter is prima facie
vexatious, and the same could be said where the actions are brought in
different Courts."
20. While the causes of action may be technically distinct, the applicant's approach
of pursuing multiple proceedings simultaneously without proper disclosure
suggests an attempt to "bypass all available avenues" and "fast tra ck his
alleged unfair dismissal."
Threatening Language
21. Concerning is the applicant's statement in his replying affidavit that if he does
not obtain relief, "he will lose his faith in the Constitution and is very likely to
7 1951 (3) SA 307 (O).
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commit atrocities against humanity and hate crimes." Such threatening
language is inappropriate and reflects poorly on the applicant's bona fides.
CONCLUSION
22. The application is dismissed for the following reasons:
22.1 Material disputes of fact exist that cannot be resolved on the papers,
particularly regarding the alleged verbal contract, the circumstances of
termination, and the applicant's changing versions of events.
22.2 Failure to make out a case for breach of contract: The applicant has
failed to properly plead and prove the essential ele ments of his
contractual claim, particularly regarding specific breaches, quantification
of damages, and causation.
22.3 Defective application: The applicant's claim is inadequately set out in the
founding affidavit and ought to have been brought by way of acti on,
particularly regarding the alleged verbal contract and specific breaches
of the written contract.
23. Costs must follow the event. The general rule that the unsuccessful party bears
the costs applies, particularly given the deficiencies in the application and the
approach adopted by the applicant.
IT IS ORDERED THAT:
1. The application is dismissed.
2. The applicant is to pay the respondent's costs of suit and on a scale B.
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__ _____
READ C
ACTING JUDGE OF THE HIGH COURT,
JOHANNESBURG GAUTENG
DATE OF HEARING: 11 June 2025
DATE OF JUDGMENT: 05 September 2025
FOR THE APPLICANT: Self-represented
FOR THE RESPONDENT:
Adv JH Lerm instructed by De Beer
Makoele Attorneys