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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
September 21, 2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.

September 7, 2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.