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Article 8/2024

LabourEdge

The constitutional court, in NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC), indicated, in no uncertain terms, that the labour appeal court in this matter incorrectly created various principles, including the following:

  • to escape guilt in respect of common purpose, a bystander has to take positive steps to disassociate himself/herself from the act of the actual perpetrator
  • to escape guilt in respect of common purpose, the bystander is required to intervene and protect

By utilising the approach adopted in criminal law in S v Mgedezi 1989 (1) SA 687 (A) and taking into account the requirements for derivative misconduct formulated by the constitutional court in the Dunlop Mixing judgment, what are the current principles to be identified regulating collective misconduct within the common purpose environment?

By utilising the approach adopted in criminal law in S v Mgedezi 1989 (1) SA 687 (A) and taking into account the requirements for derivative misconduct formulated by the constitutional court in the Dunlop Mixing judgment, what are the current principles to be identified regulating collective misconduct within the common purpose environment?

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  • The first fundamental principle to appreciate is that what has been stated by the constitutional court in the Dunlop Mixing judgment pertaining to derivative misconduct (Article 6/2024) is equally applicable to the application of the common purpose doctrine.
  • The second fundamental principle to appreciate is that what the constitutional court stated about the requirements for obtaining an interdict so applicable to bystanders (Oak Valley Estates judgment – Article 3/2024) is not applicable to either the common purpose doctrine or derivative misconduct.
  • In short, in order to find an employee guilty of common purpose misconduct, evidence (direct or circumstantial) is required to prove:
    • association with the misconduct (before, during or after)
    • a shared common purpose with the perpetrator by himself/herself 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?