Article 8/2024

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
November 25, 2024

What are the principles governing the vicarious liability of an employer for acts committed by an employee in breach of the EEA, in terms of s60 of the EEA?

November 25, 2024

The scenario is as follows: only employees working at a bakery and not employees working at a mill were party to the disputes when referred to conciliation.  At arbitration, the union wanted to join the employees working at the mill.

Is such joinder permissible?

November 25, 2024

What is the test for unfair discrimination formulated in Harksen v Lane and consistently applied subsequently by the various courts, including, recently, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU (2022) 33 SALLR 277 (LC); (2022) 43 ILJ 1584 (LC)?