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

What is the viewpoint of the labour appeal court, as expressed in SA Municipal Workers’ Union obo Morwe v Tswaing Local Municipality and Another [2023] 2 BLLR 131 (LAC); (2022) 33 SALLR 60 (LAC)?

An employer set out its employees’ rights in disciplinary hearings in the applicable disciplinary code and incorporated same into their employment contracts.

What are the options available to an employee when an employer allegedly owes such employee monies in terms of a contract of employment?