In a January 2024 judgment the Labour Court reaffirmed the principles pertaining to the doctrine of common purpose in relation to violent acts committed by groups of employees during strike action.

In November 2018, about 2500 employees of a pharmaceutical retailer embarked on a protected strike which was subject to picketing rules.  Following non-compliance with the picketing rules, the employer successfully obtained two court orders, the first of which interdicted the employees from committing further acts of violence and intimidation, and the second of which suspended the picketing rules and restrained the striking employees from continuing with the strike.

Despite the two court orders, the employees continued striking and two major incidents resulted in the dismissal of approximately 800 employees.  The one incident involved a group of employees departing on a bus which they had hired and committing various acts of violence at two of the employer’s stores.  These employees committing the violent acts were supported by employees who sang struggle songs from the bus.

The majority of the dismissals were found by the CCMA to be fair.  A trade union launched a review of the arbitration award.

The court endorsed the following principles laid down by the Constitutional Court in NUMSA obo Dhludhlu and 147 others v Marley Pipe Systems (SA)(Pty) Limited, the authoritative case on common purpose in cases of violence during strikes:

  • Mere presence and watching does not suffice (merely “being there” cannot constitute association)
  • There must be evidence, direct or circumstantial, that employees associated themselves with the violence before it commenced or even after it ended
  • The employee must perform some act of association with the unlawful conduct
  • An intention in relation to the violence is required
  • Singing during a violent act is not enough to demonstrate an act of association.

Individual complicity, which must include the employee having the necessary intention to commit the violent acts, must always be established because that is what the principles of common purpose require.

There was no evidence that the employees who remained on the bus had the intention to commit the violence perpetuated by the employees who committed the acts of violence as they showed no outward support except by singing struggle songs which are “part and parcel of the culture of resistance, and is a feature in labour disputes”.  As put by the court in reference to South African Commercial Catering and Allied Workers Union and others v Makgopela and others “our law does not allow a determination of guilt simply by association.”  The actions of the employees who remained on the bus did not pass the threshold for common purpose.  Their conduct still amounted to serious misconduct as they knowingly violated two court orders and showed solidarity with those committing the violent acts. As such, the Labour Court ruled that their dismissals were fair and should stand. 

This judgment serves as a reminder to employers to be cautious when dismissing employees en masse for violence perpetuated during strikes by certain employees only as the high threshold for the doctrine of common purpose may prove difficult for the employer to overcome.  Employers must always consider the merits of each case and establish individual complicity in the violence, whether directly or through the doctrine of common purpose.

This blog was co-authored by Zubenathi Ndlwana, Candidate Attorney