CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 233/21
In the matter between:
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA obo AUBREY DHLUDHLU
AND 147 OTHERS Applicant
and
MARLEY PIPE SYSTEMS (SA) (PTY) LIMITED Respondent
Neutral citation: Numsa obo Aubrey Dhludhlu and 147 Others v Marley Pipe
Systems (SA) (Pty) Ltd [2022] ZACC 30
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ
Judgment: Madlanga J (unanimous)
Decided on: 22 August 2022
2
ORDER
On appeal from the Labour Appeal Court (hearing an appeal from the Labour Court)
the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The 41 employees who are the subject of this appeal are found not guilty
of the assault of Mr Ferdinand Christiaan Steffens.
4. Insofar as they relate to what is set out in paragrap h 3, the orders of the
Labour Court and Labour Appeal Court are set aside.
5. The matter is remitted to the Labour Court to consider a sanction afresh
on the charge of participation in an unprotected strike.
6. For purposes of paragraph 5, the Labour Court must be constituted
differently.
JUDGMENT
MADLANGA J (Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Mlambo AJ, Theron J,
Tshiqi J and Unterhalter AJ):
Introduction
[1] This matter has been decided without an oral hearing.
[2] At issue in this application for leave to appeal is whether the Labour Appeal
Court created new rules on proof of common purpose and, if it did, whether – in the
context of the requirement that dismissals be substantively fair – these rules accord with
MADLANGA J
3
this requirement. The issue arises in the context of the dismissal of employees for the
serious assault of a manager employed by the respondent, Marley Pipe Systems SA
(Pty) Ltd. The assault took place during the course of an unprotected strike at the
respondent’s premises on 14 July 2017. The applicant, the National Union of
Metalworkers of South Africa (NUMSA), a registered trade union, comes before us
acting on behalf of only 41 of a much larger number of dismissed employees.1
Background
[3] In July 2017 a wage increase agreement affecting the plastics industry was
reached pursuant to sectoral level bargaining under the auspices of the Plastics
Negotiating Forum. The respondent’s business is within the plastics industry. O n
13 July 2017 the respondent communicated the increase to NUMSA shop stewards. On
that same day the shop stewards, in turn, communicated the increase to the respondent’s
employees who are NUMSA members. Unhappy with the increase, NUMSA members
who worked on the morning shift embarked on an unprotected strike on the morning of
14 July 2017. They first gathered at the canteen waiting to be addressed by
Mr Ferdinand Christiaan Steffens, the respondent’s head of human resources. When he
did not arrive, the y moved towards the respondent’s administrative offices carrying
placards which called for the removal of Mr Steffens. This was still in the morning.
[4] Mr Steffens came out. The striking employees surrounded and assaulted him
severely. He was punched and kicked whilst he lay on the ground. Rocks were thrown
at him. He sustained injuries all over his body. He was also pushed through a glass
window. He managed to leave the premises and went to seek medical help only after
two employees who were not part of the group on strike came to his rescue. On the
same day the respondent called the police to quell the unrest. It also secured an order
in the Lab our Court interdict ing the employees from committing acts of violence,
intimidation and harassment and engaging in the unprotected strike.
1 The citation refers to the applicant as “NUMSA obo Aubrey Dhludhlu and 147 Others”. That is mistaken because,
before the Labour Appeal Court already, the appeal was being pursued in respect of only 41 of the original 148
litigating employees. Before us nothing has changed; we are concerned with only 41 employees.
MADLANGA J
4
[5] After a disciplinary process that took place during July to August 2017, the
respondent dismissed 148 employees. An independent chairperson found the
employees guilty of two counts of misconduct. One was the assault of Mr Steffens and
the other was participation in the unprotected strike. One hundred and thirty-six of the
employees were convicted of assault on the ba sis of the doctrine of common purpose.
The other 12 were found to have been involved in the actual physical assault of
Mr Steffens. The respondent dismissed all 148 employees pursuant to a
recommendation to that effect by the chairperson. Aggrieved by t heir dismissals, the
employees, represented by NUMSA, referred an unfair dismissal dispute to the Metal
and Engineering Industries Bargaining Council. After conciliation failed, a claim of
unfair dismissal was referred to the Labour Court.
[6] At the Labour Court t he employees bizarrely pleaded that no assault or
unprotected strike took place.2 Based on that, they contended that the dismissals were
unfair. The respondent opposed the claim. It filed a counterclaim in which it sought
just and equitable compe nsation, as contemplated in section 68(1)(b) of the
Labour Relations Act3 (LRA) for losses incurred as a result of the unprotected strike.
In the alternative, the respondent sought damages.
2 I say bizarrely because the employees had, indeed, embarked on an unprotected strike and plainly the assault
had taken place.
3 66 of 1995. Section 68(1)(b) provides—
“(1) In the case of any strike or lock-out, or any conduct in contemplation or in furtherance
of a strike or lock-out, that does not comply with the provisions of this Chapter, the
Labour Court has exclusive jurisdiction—
. . .
(b) to order the payment of just and equitable compensation for any loss attributable to the
strike or lock-out, or conduct, having regard to—
whether—
(aa) attempts were made to comply with the provisions of this Chapter and the
extent of those attempts;
(bb) the strike or lock-out or conduct was premeditated;
(cc) the strike or lock -out, or conduct was in response to unjustified conduct by
another party to the dispute; and
MADLANGA J
5
[7] Satisfied that the employees were guilty of misconduct, the Labour Court upheld
the dismissals and awarded damages. Twelve employees were positively identified as
having been involved in the actual physical assault of Mr Steffens. Many more
employees were placed on the scene by recourse to the following evidence. It was
established from the clock cards used for purposes of the respondent’s payroll system
that – with the exception of Mr Mokoena (to whom I revert later) – all the employees
had arrived at work for the morning shift. Job cards used at workstations also helped
identify employees who were in the morning shift. Reliance was also placed on
photographic and video material that depicted the events on the day. According to oral
testimony, a large group of employees first gathered in the canteen and moved – still as
a group – towards the offices. Also, the employees were not at their workstations. This
appears to have been taken to mean that all of them must have been part of the group
that first converged at the canteen and then proceeded to the scene of the assault. In
addition, the employees were each given an opportunity to indicate to the respondent
through Dropbox (a file sharing application) or WhatsApp Messenger that they had not
participated in the acts of misconduct. A handful of employees did and they were not
charged.
[8] What was also taken into account was the evidence of Mr Klaas Ledwaba, an
employee. He was the only witness who testified on behalf of all the employees. He
testified that all the employees regarded themselves as leaders in respec t of the events
of the day in question. He denied that Mr Steffens was assaulted, which was plainly
untruthful. He said the employees gathered in the vicinity of the offices and that they
saw Mr Steffens leave the premises of the respondent. He also den ied that the
(dd) there was compliance with an order granted in terms of paragraph (a);
(i) the interests of orderly collective bargaining;
(ii) the duration of the strike or lock-out or conduct; and
(iii) the financial position of the employer, trade union or employees
respectively.”
MADLANGA J
6
employees participated in an unprotected strike, on which he backed down under
cross-examination.
[9] As I have said, only 12 of the 148 employees were identified to have engaged in
the actual physical assault of Mr Steffens. Another 95 employees were placed on the
scene by the one or other form of evidence referred to above. That leaves 41 employees.
Of these, 40 were never identified as having been at the scene of the assault. One,
Mr Mokoena, whom I mentioned earlier, was not on the morning shift. He was a
NUMSA shop steward and came to the workplace after the assault had taken place. On
the count of assault, the confirmation of the finding of guilt was based on common
purpose.
[10] NUMSA appealed to the Labour Appeal Court. Notably, the appeal was in
respect of only Mr Mokoena and the 40 employees who were not identified by means
of the evidence discussed above. NUMSA’s stance was that the dismissal s were
substantively unfair. The appeal was unsuccessful. The Labour Appeal Court fi rst
sought to place the appellant employees at the scene by saying:
“There was no evidence that it was only 107 of the [employees], in respect of whom
the appeal is no longer pursued, who were present on the scene of the assault. The
undisputed evidence was that all the appellant employees had left their workstations
and participated in the strike. The employees wanted to speak to Mr Steffens in the
canteen and, when he did not arrive, they moved to the main gate and towards his office
with demands that included his removal.”4
[11] The Labour Appeal Court then held that common purpose had been established
because—
“[t]here was no evidence that any of the 148 . . . employees distanced him- or herself
from the actions of the group and the clear evidence was that the assault on Mr Steffens
4 NUMSA obo D hludhlu Marley Pipe Systems SA (Pty) Ltd [2021] ZALAC 13; ( 2021) 42 ILJ 1924 (LAC);
[2021] 9 BLLR 894 (LAC) (Labour Appeal Court judgment) at para 21.
MADLANGA J
7
was perpetrated by members of the group of striking employees. None of the
employees intervened to stop the assault and assist Mr Steffens, nor did they
disassociate in any way from the assault b efore, during or after it. In fact, the
undisputed evidence was that the striking employees celebrated the assault after the
fact. It followed in the circumstances, having regard to the proven facts, that the
inference drawn that all employees were involved in or associated themselves with the
assault became the most probable and plausible.”5
[12] It added:
“From the evidence before the Labour Court, it is clear that the appellant employees
associated with the actions of the group before, during or after the misconduct. This
included Mr Mokoena who, although he arrived on the scene after the assault, through
his conduct associated directly with the actions of the group. It also included the
employees who, in [the opinion of Ms Crowie, were] . . . bystanders. There was no
dispute that these employees were present at the scene and associated with the events
of the day. They too took no steps to distance themselves from the misconduct either
at the time of, during or after the assault. Instead, they persiste d with the denial, both
in their pleaded case and the evidence of Mr Ledwaba, that any assault had occurred
and refused the opportunity to explain their own conduct in relation to it.”6
[13] Before us NUMSA persists in its stance that the dismissal s were substantively
unfair. In particular, it takes issue with the approach adopted by the Labour Appeal
Court in its consideration of the doctrine of common purpose. The finding of
misconduct for participation in an unprotected strike is not before us.
Jurisdiction and leave to appeal
[14] At first blush one may be led to think that this case involves nothing more than
the possible misapplication of otherwise well-established legal principles of the doctrine
5 Id.
6 Id at para 24.
MADLANGA J
8
of common purpose, which would ordinarily not engage this Cou rt’s jurisdiction.7 As
I will demonstrate presently, that is not the case. Whilst purporting to apply extant
principles of the doctrine of common purpose, the Labour Appeal Court, in fact, created
new principles. It insists that in order not to be adjud ged guilty under the doctrine of
common purpose, a bystander must take positive steps to distance themselves from the
act of the actual perpetrator. And it holds that employees whom Ms Crowie, the
respondent’s witness, described as bystanders ought to hav e so distanced themselves.
It also requires of a bystander to intervene and protect another from physical harm.
These implicate the substantive fairness of the dismissal, thus raising constit utional
issues under section 23 of the Constitution.8
[15] In any e vent, this Court’s jurisdiction is engaged on the simple basis that
NUMSA challenges the fairness of the dismissal. In and of itself, that implicates a
constitutional issue.
7 Booysen v Minister of Safety and Security [2018] ZACC 18; 2018 (6) SA 1 (CC); 2018 (9) BCLR 1029 (CC) at
para 50 and General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 (8) BCLR 919 (CC) at
para 38.
8 Section 23 reads:
“(1) Everyone has the right to fair labour practices.
(2) Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right—
(a) to form and join an employers’ organisation; and
(b) to participate in the activities and programmes of an employers’ organisation.
(4) Every trade union and every employers’ organisation has the right—
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer has the right to engage in
collective bargaining. National legislation may be enacted to regulate collective
bargaining. To the extent that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).
(6) National legislation may recognise union security arrangements contained in collective
agreements. To the extent that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).”
MADLANGA J
9
[16] As will soon become apparent, there are reasonable prospects of us holding that
the Labour Appeal Court’s approach was wrong. Also, the new principles created by
the Labour Appeal Court will affect large numbers of employees where
strikes – protected or unprotected – turn violent. These issues are thus of some import.
Thus, it is in the interests of justice that leave to appeal be granted.
Proof of common purpose
[17] First, the law. Let me start with Mgedezi where Botha JA held:
“In the absence of proof of a prior agreement, accused No 6, who was not shown to
have contributed causally to the killing or wounding of the occupants of room 12, can
be held liable for those events, on the basis of [common purpose], only if certain
prerequisites are satisfied. In the first place, he must h ave been present at the scene
where the violence was being committed. Secondly, he must have been a ware of the
assault on the inmates of room 12. Thirdly, he must have intended to make common
cause with those who were actually perpetrating the assault. Fourthly, he must have
manifested his sharing of a common purpose with the perpetrators of the assault by
himself performing some act of association with the conduct of the others. Fifthly, he
must have had the requisite mens rea [criminal intent]; so, in respect of the killing of
the deceased, he m ust have intended them to be killed, or he must have f oreseen the
possibility of their being killed and performed his own act of association with
recklessness as to whether or not death was to ensue.”9
[18] This is a correct rendition of the law in a situation where the person sought to be
held liable was present at the scene. We know from Dunlop10 that, to attract liability or
a holding of complicity, presence at the scene is not a requirement. Although what was
held in Dunlop was in the context of the concep t of derivative misconduct, it is of
relevance here. Here is what Froneman J held:
9 S v Mgedezi [1988] ZASCA 135; 1989 (1) SA 687 (A) at 705I-706B.
10 National Union of Metalworkers of South Africa obo Khanyile Nganezi v Dunlop Mixing and Technical Services
(Pty) Limited [2019] ZACC 25; 2019 (5) SA 354 (CC); 2019 (8) BCLR 966 (CC) at para 46.
MADLANGA J
10
“Inferential reasoning in establishing actual participation or association in the primary
misconduct was sufficient in FAWU, Chauke and RSA Geological Services (Review).
The difficulty seems to be with the emphasis placed on the necessity of direct presence
at the scene of the misconduct, as is also evidenced by the arbitrator’s and
Labour Courts’ approach here. Evidence, direct or circumstantial, that individual
employees in some form associated themselves with the violence before it commenced,
or even after it ended, may be sufficient to establish complicity in the misconduct.
Presence at the scene will not be required, but prior or subsequent knowledge of the
violence and the necessary intention in relation thereto will still be required.”11
[19] Let me get something out of the way. Dunlop quotes with approval a remark by
Grogan in an arbitral award to the effect that “a refusal to disclose information relating
to an offence can in certain circumstances make a person an accessory”.12 Dunlop adds
that this would be an accessory after the fact.13 The charge that the 41 employees were
facing was not one of being accessories after the fact for refusing to disclose
information. Yes, their witness lied in testimony when he denied that Mr Steffens was
assaulted, but that bears no relevance to the charges they were facing.
[20] Sadly, acts of violence and intimidation by large groups of employees at the
workplace during strikes – protected or unprotected – are not a rare occurrence. And I
am quite mindful of the fact that an employer seeking to prove individual employee
complicity in s uch acts for purposes of disciplinary proceedings faces formidable
evidentiary difficulties.14 Some of the employees may successfully be caught within
the net, but many who are most likely complicit may escape.
[21] Much as I understand this difficulty, there is a countervailing factor. Sympathy
for employers must not result in innocent employees being sacrificed. It is not beyond
11 Id.
12 Dunlop above n 10 at para 46. See also National Union of Mineworkers v RSA Geological Services (A Division
of De Beers Consolidated Mines Ltd) (2004) 25 ILJ 410 (ARB) ( RSA Geological Services (Arbitration) ) at
para 29.
13 Dunlop Id.
14 Maqutu “Collective M isconduct in the Workplace: Is ‘Team Misconduct’ ‘Collective Guilt’ in Disguise?”
(2014) 25 Stell LR 566 at 568.
MADLANGA J
11
the realm of possibility for employees to be mere spectators when other employees are
committing acts of violence. It would be a travesty to charge, find guilty of acts of
violence and dismiss an employee who – although part o f a group of striking
workers – never took part in or associated with such acts. Take the evidence of
Ms Crowie in this very case. She said some of the emplo yees were “bystanders”. A
bystander is just that: “a person who is present at an event but does not take part”.15
[22] I am not placing any undue weight on what Ms Crowie said. I am aware that
saying people are bystanders has loaded in it facts and a conclusion. On what facts is a
conclusion being drawn that an employee is a bystander? I cannot readily tell what was
fact or conclusion in what Ms Crowie said. But none of this detracts from the possibility
that there may be employees who are “spectators” or “ bystanders” whilst other
employees are committing acts of violence. For liability to attach, there must be proof
of an employee’s complicity in the acts of violence, including proof on the basis of the
doctrine of common purpose. Of course, in the context of labour disputes, this is proof
on a balance of probabilities. But there must be proof.
[23] Also, it is not as though employers cannot ameliorate the evidentiary difficulties.
Quoting Mondi Paper 16 and Durban University of Technology ,17 here is what
Oak Valley Estates says in this regard:
“As the High Court noted in Mondi Paper , ‘the production of proper proof either
directly or by circumstantial evidence is not beyond the ingenuities of employers, given
the modern technology that is available’ to them. Likewise, in Durban University of
Technology, the High Court remarked that—
‘with the modern methods of access control, CCTV cameras, etc, there
is ample opportunity for the applicant’s security services to be able to
15 Compact Oxford English Dictionary.
16 Mondi Paper (A Division of Mondi Ltd) v Paper Printing Wood and Allied Workers Union (1997) 18 ILJ 84
(D) at 93B-C.
17 Durban University of Technology v Zulu 2016 JDR 1284 (KZP) at para 27.
MADLANGA J
12
identify those persons who were on t he campus when the violence
occurred, and steps could be taken to identify them.’”18
I say “ameliorate” advisedly because these do not necessarily guarantee a 100% success
rate. But they definitely are a valuable tool. And what must also be factored is w hat
sits on the other side of the spectrum; the real prospect of finding guilty and
sanctioning – including the possibility of dismissing – innocent employees.
[24] I accept the Labour Appeal Court’s finding, and for the reasons it gives, that the
probability is that the 40 employees were at the scene when Mr Steffens was assaulted.
That said, it is a fact that they were never identified. Not having been identified, they
were never seen doing anything. Implicit in what the Labour Appeal Court holds is
that – to escape liability for the assault – these employees should have “intervened to
stop the assault” and should have “dissociated themselves in [some] way from the
assault before, during or after it”. 19 The Labour Appeal Court does not explain where
these obligations come from. At a moral level, one may have to intervene and save a
fellow human being from physical harm. But I am not aware that there is a general
legal obligation to do so. And I do not understand the basis of imposing an obligation
to diss ociate oneself from acts of violence that one has not been shown to have
participated in. Does this obligation require of one to depart from the scene? Does it
mean there can be no bystanders or spectators? If so, what is the basis for that? There
is no basis whatsoever for the imposition of such an obligation. As I will show, this is
not in conflict with Oak Valley Estates.
[25] Mere presence and watching does not satisfy the requirements set by Dunlop and
Mgedezi. There must be “[e]vidence, direct or circumstantial, that individual employees
in some form associated themselves with the violence before it commenced, or even
18 Commercial Stevedoring Agricultural and Allied Workers Union v Oak Valley Estates (Pty) Ltd [2022]
ZACC 7; (2022) 43 ILJ 1241 (CC); [2022] 6 BCLR 487 (CC) at para 45.
19 Labour Appeal Court judgment above n 4.
MADLANGA J
13
after it ended”.20 The person concerned “must have manifested his sharing of a common
purpose with the perpetrators of t he assault by himself performing some act of
association with the conduct of the others”. 21 So, employees cannot be required to
dissociate when they never associated. An intention in relation to the violence is
required.22 The high watermark of the case against the 40 employees is that: they were
part of the group that waited for Mr Steffens in the canteen and, when he did not come,
proceeded to the offices; they marched and chanted songs within the premises; and the
group carried three placards which read “[a]way with Ferdi we want 15%”, “7.5% se
moer” (which, if I am to avoid an accurate equivalent of the colourful Afrikaans
rendition, means the 7.5% must go to hell) and “[w]e want 15% across the board”.
[26] There was no evidence that – as a group – the striking employees planned to
assault Mr Steffens. For all we know, the assault may well have been spontaneous.
Merely being there cannot constitute association. In Tshabalala Mathopo AJ says that
where there is no agreement to commit the unlawful act in issue, “liability arises from
an active association . . . with the requisite blameworthy state of mind ”.23 If merely
being there does not suffice , on what basis can the employees be found to have been
complicit? The only other evidence is that the employees were singing as the assault
took place. I am not convinced that this is enough to demonstrate an act of association.
After all, according to the evidence of Mr Viro Chinner, one of the respondent’s
witnesses, the employees were already marching , dancing and singing within the
premises upon coming out of the canteen. So, it is not as though they sang and danced
as a sign of approval of the assault. Yes, it was morally reprehensible that the singing
and dancing continued as the assault was takin g place. But it was by no means an
indication by all employees that they were associating themselves with the assault. The
singing and dancing just did not screech to a halt when the assault on Mr Steffens began.
20 Dunlop above n 10 at para 46.
21 Mgedezi above n 9 at 706A.
22 Dunlop above n 20.
23 Tshabalala v S; Ntuli v S [2019] ZACC 48; 2020 (5) SA 1 (CC) ; 2020 (3) BCLR 307 (CC) at para 48
(emphasis added).
MADLANGA J
14
[27] Does this discussion not breach the rule on how this Court must deal with factual
findings made by the court below? I think not. Before indicating why not, let me
borrow from Jafta J in Makate what this rule says:
“[T]his being the highest Court in the Republic which is charged with upholding the
Constitution, and deciding points of law of general public importance, this Court must
not be saddled with the responsibility of resolving factual disputes where disputes of
that kind have been determined by lower courts. Deciding factual disputes is ordinarily
not the role of apex courts. Ordinarily an apex court declares the law that must be
followed and applied by the other courts. Factual disputes must be determined by the
lower courts and when cases come to this Court on appeal, they are adjudicated on the
facts as found by the lower courts.”24
[28] As Makate further tells us, this is not absolute:
“But even in the appeal, the deference afforded to a trial court’s credibility f indings
must not be overstated. If it emerges from the record that the trial court misdirected
itself on the facts or that it came to a wrong conclusion, the appellate court is
duty-bound to overrule factual findings of the trial court so as to do justice to the case.
In Bernert this Court affirmed:
‘What must be stressed here, is the point that has been repeatedly
made. The principle that an appellate court will not ordinarily interfere
with a factual finding by a trial c ourt is not an inflexible rule. It is a
recognition of the adva ntages that the trial court enjoys whic h the
appellate court does not. These advantages flow from observing and
hearing witnesses as opposed to reading “the cold printed word”. The
main advantage being the opportunity to observe the demeanour of the
witnesses. But this rule of practice should not be used to “tie the hands
of appellate courts”. It should be used to assist, and not to hamper, an
appellate court to do justice to the case before it. Thus, where there is
a misdirection on the facts by the t rial court, the appellate court is
entitled to disregard the findings on facts and come to its own
24 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC) at para 39.
MADLANGA J
15
conclusion on the facts as they appear on the record. Similarly, where
the appellate court is convinced that the conclusion reached by the trial
court is clearly wrong, it will reverse it.’”25
[29] I have not gone against a single fact – not conclusion – that the Labour Appeal
Court found to have been established. T o recapitulate, the 40 employees who were on
duty were not at their workstations. They were part of a group of employees that went
to the canteen to be addressed by Mr Steffens. They were part of a group that left the
canteen and went towards the offices after Mr Steffens had not arrived at the canteen.
As they went towards the offices, the emplo yees were marching, dancing and singing
and carrying three placards. On arrival next to the offices, Mr Steffens came out and
was severely assaulted, but only 12 of the employees were positively identified to have
taken part in the assault. The singing and dancing were continuing whilst Mr Steffens
was being assaulted. None of the striking employees came to Mr Steffens’ rescue. The
40 employees were still part of the group when the assault was committed.
[30] If I accept all of this evidence, with what then do I take issue? I take issue with
two conclusions. The first is that the 40 employees did not dissociate from the assault.
The second is that they were rejoicing. As I said, from the proven facts, there is no
evidence that they ever associated with the assault. Regarding rejoicing, the marching,
singing and dancing were already taking place when the group left the canteen. The
Labour Appeal Court’s conclusions are thus insupportable. I think my refusal to be
bound by them falls squarely within the exception highlighted in Makate.
[31] On the available facts, the above reasoning applies with more force to
Mr Mokoena who was not even at the respondent’s premises when the assault took
place. I emphasise “on the available facts” to avert any possible misunderstanding that
I am departing from the holding in Dunlop that, for purposes of complicity, presence at
the time of commission of acts of violence is not a requirement. All that is said about
Mr Mokoena is that upon arrival, he joined the group that was participating in the
25 Id at para 40.
MADLANGA J
16
unprotected strike. The Labour Appeal Court’s judgment says n othing concrete about
how exactly he associated himself with the assault.
[32] The respondent supports its argument on proof of common purpose by relying
on this Court’s recent judgment in Oak Valley Estates. There Theron J had this to say:
“Two important principles can be distilled from this Court’s jurisprudence . . . . First,
mere participation in a strike, protest, or assembly, in which there is unlawful conduct,
is insufficient to link the impugned respondent to the unlawful conduct in the manner
required for interdictory relief to be granted. Second, the necessary link can however
be established where the protesters or strikers commit the impugned unlawful conduct
as a cohesive group. Whether this is established will, of course, turn on the particular
facts of the case. Where, for instance, unlawful conduct during protest action is
ongoing, widespread, and manifest, individual protesters or strikers will usually have
to disassociate themselves from the conduct, to escape the inference that it is reasonably
apprehended that they will cause injury to the applicant.”26
[33] The respondent specifically relies on the second principle. Oak Valley Estates
is distinguishable. It concerns interdicts, not termination of employment on the basis
of common purpose. The issue in that case was whether an employer faced with
unlawful conduct committed during a protected strike can obtain an interdict against
employees participating in that strike without linking each employee to the unlawful
conduct. As the second principle quoted from the case shows, in certain circumstances
a “link” may consist in merely being within a cohesive group committing acts of
violence at the workplace without the individual concerned being actually linked to the
violence. Failure by an individual employee to, so to speak, walk away from the guilty
cohesive group may result in an employer being entitled to obtain an interdict against
that employee without her or him specifically being linked to the acts. Also, an interdict
is distinguishable because – although it may concern condu ct that is already taking
place – it is often concerned with future conduct. It may not be necessary to ob tain an
interdict against an employee who has readily undertaken not to participate in any future
26 Oak Valley Estates above n 18 at para 42.
MADLANGA J
17
unlawful action. Where there is no such undertaking, an interdict is usually warranted.
Past conduct founding disciplinary action is on a different footing.
[34] On the other hand, it would definitely be a non -starter to suggest that an
employee could be dismissed on the basis that – through common purpose – she or he
was “involved” in acts of violence without linking that employee to those acts. A
verdict of gu ilt cannot appropriately be returned for merely being where the acts of
violence took place. An employee could simply have been there as a spectator or the
acts could have happened so spontaneously or suddenly that the employee could not
avoid being there. As was held in Polyoak, “[o]ur law knows no concept of collective
guilt”.27 Maqutu aptly puts it thus:
“Employers find it particularly difficult to prove the participation of each individual in
the impugned conduct where misconduct is alleged to be collective. Nonetheless, no
one should be held accountable where no evidence can be adduced to substantiate the
claim against individuals, solely on the basis of being part of the group.”28
[35] Of course, the answer cannot be that the employee must save her - or himself
from the prospect of a verdict of guilt by giving an explanation as to the true facts.
Failure to give an explanation does not equal complicity. Workplace dynamics are not
as simple as all that. Just one example : an innocent employee who was in the group
that committed the acts of violence may choose silence for fear of ostracism and – worse
still – animosity. I can well imagine that such fear may exist even if the explanation
were not to tell it all about the actual culprits. And to those who are not sanctimonious
armchair observers, this is no small matter.
[36] Sympathetic though I am to the difficulties facing employers, individual
complicity in the commission of acts of violence must be established. That is what the
principles on common purpose have always required. If it were to be otherwise, the law
27 Polyoak (Pty) Ltd v Chemical Workers Industrial Union 1999 20 ILJ 392 (LC) at 393C.
28 Maqutu above n 14 at 568. This was quoted with approval in Dunlop above n 10 at para 48.
MADLANGA J
18
would be a cruel instrument that attaches guilt and imposes sanction on the innocent .
Association in complicity for purposes of common purpose must include having “ the
necessary intention” in relation to the complicity.29
[37] In sum, the principles applicable to common purpose have not been satisfied.
Thus, there was simply no basis for holding the 41 employees guilty of assaulting
Mr Steffens. The dismissals on the basis of this finding of guil t were substantively
unfair.
Remedy
[38] A complicating factor is that the employees were convicted of assault and
participating in an unprotected strike. Despite the fact that the latter conviction stands,
that does not necessarily mean that dismissal is the sanction that would have been
imposed for it. The reality is that the unprotected strike entailed violence. It is not
inconceivable that this fact had an influence on sanction. It seems to me that an
appropriate order is remittal to the Labour Court for a consideration of what ought to be
done with regard to sanction now that the aggravating fact of a severe assault is out of
the way.
Costs
[39] This being a labour matter, costs will not be awarded.30
Order
[40] The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
29 See Dunlop above n 10 at para 46.
30 See Zungu v Premier of the Province of KwaZulu -Natal [2018] ZACC 1; (2018) 39 ILJ 523 (CC) ; 2018 (6)
BCLR 686 (CC).
MADLANGA J
19
3. The 41 employees who are the subject of this appeal are found not guilty
of the assault of Mr Ferdinand Christiaan Steffens.
4. Insofar as they relate to what is set out in paragraph 3, the orders of the
Labour Court and Labour Appeal Court are set aside.
5. The matter is remitted to the Labour Court to consider a sanction afresh
on the charge of participation in an unprotected strike.
6. For purposes of paragraph 5, the Labour Court must be constituted
differently.
For the Applicant:
For the Respondent:
S Mabaso and N Masondo instructed by
S Mabaso Incorporated
F A Boda SC instructed by Cliffe
Dekker Hofmeyr Incorporated