The High Court raised a point of law mero motu as it was entitled, if not obliged, to do.  This is so because if it is “apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law… Otherwise, the result would be a decision premised on an incorrect application of the law.”  See Cusa v Tao Ying Metal Industries [2008] ZACC 15 (CC) at para 68.  The employee failed to allege that he elected to cancel the agreement based on the employer’s repudiation, nor that he informed the employer of his election.  This is a necessary allegation to sustain a cause of action founded on breach of contract.  Cancellation of the written agreement was not sought and the agreement still existed.  So the question of damages consequent upon a breach did  not arise.  See Highveld 7 Properties (Pty) Ltd v Bailes [1999] ZASCA 71; [1999] 4 All SA 461 (A).

Teyise v MEC: Local Government and Traditional Affairs (236/15) [2015] ZAECBHC 43; [2016] JOL 35907 (HC) (28 July 2015) per SM Mbenenge J.