The Doctrine of Common Purpose and Violent Strikes

In a judgment handed down by the Constitutional Court yesterday in NUMSA obo Dhludhlu & Others v Marely Pipe Systems (SA) (Pty) Ltd the doctrine of common purpose as applied during violent strike action was critically evaluated.

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It is common during violent strikes for Employers to impute misconduct on ‘bystanders’ or ‘spectators’ of the actual misconduct, and after doing so to impose severe sanctions – usually dismissal.

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The misconduct is ordinarily imputed through the application of the doctrine of common purpose, which doctrine has historically been applied in the criminal justice system when dealing with groups of offenders to a crime or a series of crimes.

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It is apparent that the doctrine has not been dealt with in the manner which it ought to, and that the criteria for it to be applied to employees in dismissal disputes has been relaxed by decision makers of late.

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In its judgment, the Constitutional Court reiterates the prerequisites which are to be satisfied prior to finding an employee guilty in accordance with this doctrine. These are [paraphrased from the judgment cited in S v Mgedezi [1988] ZASCA 135; 1989 (1) SA 687 (A)]:

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1.????The Employee had to be present at the scene where the violence was committed.

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2.????The Employee had to be aware of the acts of violence.

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3.????There must have been an intention on the part of the employee to make common purpose with those perpetrating the violent acts.

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4.????The employee must have manifested his/her sharing of a common purpose with the perpetrators of the violent acts by himself/herself performing an act of association with the conduct of the others.

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5.????The employee must have had the requisite mens rea (criminal intent), meaning that he/she intended for the violent act to occur, alternatively that he/she must have foreseen the possibility of it occurring and performed his/her own act of association with the recklessness as to whether or not the violence would ensue.

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What this practically means for employers that wish to discipline and dismiss employees who were present but who did not participate in the acts of violent misconduct, is that each of the five criteria set out above would need to be proven on a balance of probabilities when dealing with the fairness of an employee’s dismissal.

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The Court in its judgment is mindful of the fact that certain acts of misconduct and violence erupt spontaneously during industrial action. It further states that it would be unreasonable to impute complacency (and consequent guilt) on innocent bystanders or spectators under circumstances where they had no intention to commit violent acts to satisfy the doctrine of common purpose.

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In order to avoid unnecessary obstacles in dismissal disputes, it remains safe for Employers to charge employees on misconduct which can clearly be attributed to them through good evidence, either directly or indirectly, while having regard to the rules of evidence. ?