THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J420/21
In the matter between:
EMMANUEL MAKALELA MASHILE Applicant
And
COMMISSION FOR CONCILIATION MEDIATION
& ARBITRATION First Respondent
ASHA SEWPERSAD N.O. Second Respondent
CAPITEC BANK LIMITED Third Respondent
Heard: 13 November 2025
Delivered: 21 November 2025
JUDGMENT
RAMJI, AJ
[1] The applicant ( Mr Mashile) was employed by the third respondent (Capitec) .
He was dismissed for misconduct on 6 March 2019.
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[2] After his dismissal, he referred an unfair dismissal dispute to the Commission
for Conciliation, Mediation and Arbitration ( CCMA). He was unsuccessful at
arbitration and took the award on review. The award was reviewed and set
aside on 25 February 2021. The Labour Court did not grant reinstatement but
ordered Capitec to pay him 12 months’ compensation.
[3] During April 2021, Mr Mashile then brought an action alleging breach of his
contract of employment . This judgment relates to his action for breach of
contract.
[4] He seeks, among other things:
4.1 an order for retrospective reinstatement; alternatively
4.2 an order for compensation ‘ from [the] date of [his] dismissal to [his ]
retirement date while adhering to the interest rates.’
[5] The matter was set down for trial.
[6] Before the commencement of the trial, Capitec pursued two points in limine
which it had raised in its statement of response. This judgment addresses
Capitec’s points in limine.
First point in limine: misjoinder
[7] Mr Mashile cited the CCMA and a CCMA commissioner (in her official
capacity) as parties to these proceedings . They are the first and second
respondents. Mr Mashile ’s pleadings state that they ‘ are joined in this
application on the basis of the interest which they “may” have in the outcome
of the application.’
[8] Capitec raised a point of misjoinder.
[9] The it is not apparent from the pleadings that the first and sec ond
respondents have any interest in Mr Mashile’s claim against his former
employer for breach of contract.
[10] The first point in limine is upheld.
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Second point in limine: pleadings fail to disclose a cause of action
Disciplinary chairperson and person issuing dismissal notice not authorised by
contract of employment
[11] This Court in Mbanjwa v Minister of the National Department of Public Works
and Others1 has set out the requirements for a plaintiff claiming breach of
contract to meet in the Labour Court:
‘A contract of employment being a contract, in a claim in terms of s 77(3) a
party must plead in accordance with rule 18(6) of the Uniform Rules.’
[12] Uniform Rule 18(6) provides:
‘A party who in his or her pleading relies upon a contract shall state whether
the contract is written or oral and when, where and by whom it was
concluded, and if the contract is written a true copy thereof or of the part
relied on in the pleading shall be annexed to the pleading.’
[13] Mr Mashile has complied with the basic requirements of Uniform Rule 18(6).
[14] He is further required to allege how his contract was breached. This entails
stating the term of the contract relied upon and the alleged breach of that
contract by the employer .2 Put differently, ‘[t]he applicant is required to prove
the existence of the contract as well as its terms allegedly breached by the
first respondent.’3 While the failure to allege a breach of any particular clause
is not fatal as a rule, 4 there must be some indication on the papers that the
termination of the contract of employment was ‘ contrary to the terms of that
contract’.5
[15] Mr Mashile pleads that Capitec breached his contract of employment by
allowing a regional manager, who had not signed his contract of employment,
1 (2021) 42 ILJ 2244 (LC) at para 15.
2 See: Phahlane v SA Police Service and Others (2021) 42 ILJ 569 (LC) at para 9.
3 Mbanjwa supra at para 37. See also: Phahlane (Ibid) at para 9.
4 Passenger Rail Agency of South Africa and Others v Ngoye and Others 2025 (2) SA 556 (LAC) at
para 42.
5 Ibid at para 43.
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to chair his disciplinary hearing and to impose the sanction of dismissal on
him. The relevant pleadings are the following:
15.1 He relies on section 77 of the Basic Conditions of Employment Act 6
(BCEA).
15.2 ‘At all material time s [Mr Mashile] was appointed by Capitec’s Human
Resource and/or the Employee Relations department and/or
Operations department…’
15.3 ‘An authorised person to appoint [Mr Mashile] on behalf of Capitec is
an Operational Manager, who by the time of the appointment of [Mr
Mashile] was Keith Lennox.’
15.4 Mr Mashile was called to the Capitec regional office in Johannesburg
Central to attend a disciplinary hearing, which ‘was chaired by a person
called Naushenah Cassim Karodia… who is a regional manager for
Capitec’s Western Rand area.’
15.5 Ms Karodia ‘ made a decision’ to dismiss Mr Mashile, ‘ which ultimately
meant that she terminated my contract of employment with Capitec,
thus exactly on this point it is where a cause of action has emerged.’
15.6 Later, he repeats his point, while acknowledging that Capitec is a
juristic person and pleaded that Mr Lennox ‘is the one authorised to act
on behalf of Capitec. There is nowhere in this contract of employment
where Karodia is implicated. In act ual fact, [Mr Mashile] is finding it
very difficult to recognise Karodia in the contract of employment
between him and Capitec. Only Keith Lennox is recognisable in the
contract of employment and there is no evidence put before this court
that Keith Lennox is no longer part of Capitec either because of
resignation, dismissal, death transfer etc.’
15.7 Mr Mashile further referred to the confidentiality clause in his contract
of employment and pleaded that ‘ the agreements in the contract of
employment are of confidential matters that only concern [Mr Mashile ]
as well as Keith Lennox on behalf of Capitec and once Capitec brings a
6 Act 75 of 1997.
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third party by the name of Karodia, it… infringed the [confidentiality]
clause.’
15.8 He repeats his argument slightly differently pleading that ‘ Karodia was
not my employer, she was my fellow employee in the same umbrella
which is the Operations Department of Capitec. So Karodia had no
rights and powers to terminate my contract of employment with
Capitec… Karodia was supposed to only give recommendations after
chairing the particular internal hearing and not the termination of my
contract of employment. Keith Lennox was the one who was supposed
to engage on the implementations on behalf of Capitec after studying
those recommendations.’
15.9 Mr Mashile refers to his contract of employment, the notice of a
disciplinary enquiry and the dismissal notice.
[16] It is the case that Ms Karodia conducted Mrs Mashile’s disciplinary hearing
and issued the sanction of dismissal, dismissing him for misconduct . This is
the only breach of contract by Capitec which Mr Mashile alleges.
[17] Mr Mashile, despite preparing a comprehensive statement of claim and
alleging breach, has not provided a link between the alleged breach and his
contract of employment or other implied terms. There is simply no contractual
right to not be dismissed by Ms Karodia (or anyone other than Mr Lennox)
evident from the pleadings.
[18] The pleadings do not disclose what aspect of the contract of employment
Capitec breached when Ms Karodia presided over his disciplinary hearing and
decided to dismiss him. Mr Mashile’s own pleading is in fact that he does not
know the policy in terms of which Ms Karodia could effect his dismissal after
conducting a disciplinary hearing. It appears that, without the benefit of sound
legal advice, Mr Mashile was not advised that he bears the onus to prove
breach
7 – which was not his experience when pursuing his unfair dismissal
claim under the Labour Relations Act8 (LRA). Finally, there is nothing inherent
claim under the Labour Relations Act8 (LRA). Finally, there is nothing inherent
7 Pilanesburg Platinum Mines (Pty) Ltd v Ramabulana (Ramabulana) 2021 JDR 0012 (LAC) at para
31.
8 Act 66 of 1995, as amended.
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in the contractual arrangement that he had with Capitec that would allow him
to claim that Ms Karodia could not determine, on behalf of Capitec, whether or
not he should be dismissed - the fact that someone else signed his contact on
behalf of Capitec does not assist Mr Mashile.
[19] Therefore, Mr Mashile’s pleadings do not lay a basis for him to lead evidence
that his contract was breached.
[20] Finally, in respect of his claim for compensation (or damages), Mr Mashile’s
has not pleaded any facts relating to the calculation of the amount of
damages that he would be entitled to. Instead, he followed an approach
established by the Labour Appeal Court (LAC) to be misconceived – he
‘simply demand[ ed] damages in the amount that [he] would earn until [his]
retirement.’
9 In a contractual claim, the applicant (plaintiff) bears the burden of
proving the damages that he suffered. He has not even pleaded (though he
explained to the Court in submissions on costs) that he remains unemployed
since his dismissal, which would go directly to calculating damages. He has
therefore not laid a basis for anything to be led in evidence.
Res judicata
[21] Snyman AJ, in the matter of Motloung v Department of Health: Free State
10, a
case where an employee pursued a claim for breach of contract after referring
an unfair dismissal dispute, held that it is ‘critical to properly consider the
applicant’s claim as it is pleaded in his statement of claim, in order to
ascertain if it is indeed a claim for breach of contract.’
[22] At numerous points in his pleadings, Mr Mashile invoked section 186 of LRA.
Although this point was not raised by Capitec in its statement of response, it is
a matter of law affecting this Court’s jurisdiction and I raised it mero motu.
[23] Mr Mashile used the section to support his claim that he was dismissed. His
invocations of section 188 of the LRA, allegations that fall within the realm of
9 Ramabulana (Id fn 8) at para 32.
9 Ramabulana (Id fn 8) at para 32.
10 (JS 309 / 21) [2022] ZALCJHB 343 (5 December 2022) at para 7.
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unfairness are also misplaced, together with the substantial legal argument
made in the statement of claim.
[24] These do not speak to contractual breach. They are causes of action falling
under the unfair dismissal protections of the LRA and are subject to a dispute
resolution process starting in the CCMA. In any event, Mr Mashile referred an
unfair dismissal dispute. It was ultimately adjudicated in his favour. These
aspects of his statement of claim are res judicata.
Relief
[25] Mr Ledwaba for Capitec argued that there would be no point in giving Mr
Mashile an opportunity to amend his pleadings to cure their defects. The
question is whether the interests of justice militate against affording Mr
Mashile an opportunity to rectify his pleadings.
[26] I have considered that this is effectively the third set of pleadings that Mr
Mashile has filed since the start of this case in 2021. In all three pleadings, he
has been unable to point to the part/s of his employment contract that Capitec
breached despite Capitec having raised this issue. The interests of justice,
particularly the expeditious resolution of labour disputes, would not be served
by giving Mr Mashile a further opportunity to amend his pleadings.
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[27] The amended statement of claim , dated 30 November 2022, which replaced
the original statement of claim, should therefore be struck out.
Costs
[28] Capitec seeks its costs. T his is a contractual claim , but this Court retains a
discretion to depart from the principle that costs generally follow the result.
[29] The LAC in Ball v Bambalela Bolts (Pty) Ltd and Another ,12 a contractual
dispute (concerning a restraint of trade) held:
‘In the Labour Court, specifically, the law and fairness are prime
considerations when considering costs. The normal rule that costs follow the
11 See: Volschenk v Pragma Africa (Pty) Ltd (2015) 36 ILJ 494 (LC) at para 32.
12 (2013) 34 ILJ 2821 (LAC) at para 29.
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result is not automatically applicable in Labour Court proceedings. The court
is required to consider factors like the financial state of the parties, their bona
fides and their continuing relationship, in coming to a decision whether to
order the unsuccessful party to pay costs. Litigants are not to be deterred
from defending or prosecuting bona fide actions for fear of adverse costs
orders.’13
[30] There is no continuing relationship between the parties.
[31] Mr Ledwaba for Capitec argued that costs are appropriate because Mr
Mashile has already received relief after referring an unfair dismissal dispute ,
then reviewing the decision against him. He received 12 months’
compensation. The relief sought in this case indicated that he was forum -
shopping and trying to obtain the reinstatement that he was not granted in his
unfair dismissal case through other means. It is correct that Mr Mashile has
sought ‘ reinstatement with backpay ’, and ‘compensation’ without laying a
basis for claiming either form of contractual remedy.
[32] Mr Ledwaba also argued that Mrs Mashile has put Capitec through an
application process first (he incorrectly brought this case on notice of motion
and not as an action), and has now put it through action proceedings, and at
no stage, sought to rectify the defects in his pleadings that Capitec pointed
out to him.
[33] Mr Mashile unrepresented. It is not apparent that he brought this case in bad
faith or contrary to legal advice. In fact, he received bad legal advice and
relied on it. He is also unemployed, and one would imagine that if he had any
funds, he would have employed a lawyer at least at some stage in these
proceedings.
[34] The fact that Mr Mashile is unemployed and his consequent financial situation
is sufficient reason not to order costs against him . T he fact that he, as a
layperson, unrepresented, has pleaded a case badly is different from acting in
bad faith.
layperson, unrepresented, has pleaded a case badly is different from acting in
bad faith.
13 See also: TIBMS (Pty) Ltd t/a Halo Underground Lighting Systems v Knight and Another (2017) 38
ILJ 2721 (LAC) at paras 31 – 33.
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[35] The following order is made:
Order
1. The first point in limine is upheld.
2. The first and second respondents are removed as parties to this
matter.
3. The second point in limine is upheld.
4. The statement of claim dated 30 November 2022, as amended, is
struck out.
5. There is no order as to costs.
_______________________
B. Ramji
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr EM Mashile (Self-represented)
For the Respondent: Mr M Ledwaba of Cliffe Dekker Hofmeyr