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Article 35/2026

What are the principles governing common purpose misconduct?

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  • The constitutional court, in NUMSA v Marley Pipe Systems 2023 (1) SA 338 (CC); (2022) 33 SALLR 22 (CC), formulated the applicable principles governing common purpose misconduct.
  • In essence, it adopted the same approach that was, formulated by the constitutional court, in National Union of Metalworkers of South Africa obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd and Others (2019) 30 SALLR 2 (CC) (Dunlop Mixing), and this amounts to the following elements to be proven before an employee could be guilty of common purpose misconduct:
    • firstly, the employee must have knowledge of the primary misconduct (prior or subsequent knowledge)
    • secondly, the employee must have the necessary intention to associate with the primary misconduct
    • thirdly, there must be evidence to show that the employee associated him/herself, with the primary misconduct (direct or circumstantial evidence is required)
  • The constitutional court, furthermore, clearly indicated that bystanders present at the scene of misconduct are not guilty on the basis of common purpose if there is no proof of complicity in the misconduct (including proof of guilt on the basis of common purpose) – in terms of Polyoak v CWIU (1999) 20 ILJ 392 (LC), common guilt is not part of our law.
  • In the next article, we will deal with the principles formulated by the constitutional court, in Commercial Stevedoring, Agriculture and Allied Workers’ Union v Oak Valley Estates (2022) 33 SALLR 49 (CC) (Oak Valley) – the constitutional court, in Marley Pipe Systems, clearly indicated that these principles are only applicable in an interdict environment and not within the common purpose environment and, furthermore, failure to take positive steps to disassociate with the misconduct committed by a group is only a consideration in the interdict environment and not the common purpose environment.
  • In Worldwide Staffing (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (2024) 35 SALLR 458 (LC) (Worldwide Staffing), the labour court, contrary to what was stated in Marley Pipe Systems, wrongly held that the failure to take positive steps to disassociate with a group is a factor relevant to the common purpose misconduct environment.
  • On the other hand, the labour court, in National Union of Public Service and Allied Workers Union obo Lutendo v CCMA (2024) 35 SALLR 127 (LC), ‘got it right’ in following the reasoning of the constitutional court in Marley Pipe Systems, where it held as follows:
    • ‘being there’ does not constitute association with the primary misconduct
    • evidence (either direct or circumstantial) is required that the employee, in some form or another, associated himself/herself with the misconduct (before it commenced, during or after it ended)
    • the employee himself/herself had to perform some action of association with the unlawful conduct
    • the necessary intention to associate also has to be proved
    • singing during an assault is not enough to establish an act of association
October 19, 2026

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In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?