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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
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?