Article 19/2023

The constitutional court, in NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC), held that the labour appeal court wrongly created the following principles pertaining to common purpose misconduct:

  • in order to escape guilt in respect of common purpose, the bystander has to take positive steps to disassociate himself from the act of the actual perpetrator
  • thus, to escape guilt, the bystander is required to intervene and protect (e g the co-employee being assaulted)

Largely, on the basis of the aforesaid principles, the labour appeal court wrongly held in casu, according to the constitutional court, that bystanders (at the scene of the assault), as well as a NUMSA shop steward (who arrived after the assault), were guilty on the basis of common purpose.

What is the approach recently adopted by the constitutional court in Marley Pipe Systems in order to provide some clarity in the above regard?

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  • The starting point is an appreciation of the common purpose principles as set out in S v Mgedezi 1989 (1) SA 687 (A), dealing specifically with the scenario where a person is present at the scene of the misconduct (as is, however, evident hereunder, presence at the scene of the misconduct is not a determinative factor) – these principles can be summarised as follows:
    • the employee charged with common purpose misconduct must be aware of the primary
      misconduct
    • he must have intended to make common purpose with the actual perpetrator(s)
    • he must have manifested his sharing of common purpose with the actual perpetrator(s) by
      himself performing some act of association
    • mens rea is required – either in the form of intention or the foreseeability of the possibility of
      misconduct and being reckless as to whether or not such misconduct takes place
  • With reference to Dunlop Mixing CC, the constitutional court, as indicated above, adopted the approach that, to attract liability or establish such complicity for the purposes of misconduct, presence at the scene is not a requirement – in this regard, and with reference to Dunlop Mixing, the constitutional court indicated that the requirements for derivative misconduct are equally applicable to common purpose, namely:
    • there must be evidence (direct or circumstantial) that the employee associated himself or
      herself with the misconduct
    • before such primary misconduct commenced or even after it ended
    • presence at the scene is not a requirement, but prior or subsequent knowledge of the primary misconduct is required in order to evaluate whether the requisite intention to associate has been complied with
  • Bystanders present at the scene of the primary misconduct cannot be found guilty on the basis of common purpose if no proof exists of their complicity in the misconduct (including proof of guilt on the basis of common purpose) – common guilt is simply not part of our law
  • The principles established in Oak Valley Estates regulating interdicts are not applicable to the doctrine of common purpose – in the interdict environment, as indicated in Article 17/2023, failure by bystanders to take positive steps to disassociate themselves with the action of a group may lead to an interdict being obtained against them
  • In conclusion, the following approach was adopted:
    • mere presence at the scene of the primary misconduct and watching the primary misconduct does not form the basis for being guilty on the ground of common purpose
    • evidence (direct or substantial) is required to prove, firstly, association with the primary misconduct (before, during or after same) and, secondly, the shared common purpose with the perpetrator(s), by himself, performing some act of association

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.