National Union of Metalworkers of South Africa obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Limited

On 14 July 2017, employees of Marley Pipe Systems embarked on an unprotected strike over dissatisfaction with a 7.5% wage increase. During the strike, employees gathered at the canteen and later moved to the administrative offices carrying placards calling for removal of Mr Steffens, the head of human resources. When Mr Steffens came out, he was severely assaulted by some employees - he was punched, kicked, had rocks thrown at him, and was pushed through a glass window. He sustained serious injuries throughout his body. After a disciplinary process, 148 employees were dismissed for two counts of misconduct: assault of Mr Steffens and participation in an unprotected strike. Of these, 12 were identified as having physically assaulted Mr Steffens, while 136 were found guilty on the basis of common purpose. NUMSA pursued the case on behalf of only 41 employees who were not identified by any evidence (40 were never identified as being at the scene, and one, Mr Mokoena, arrived after the assault). The evidence against these 41 consisted primarily of their being part of the group that gathered at the canteen, marched to the offices singing and dancing, and carrying placards. None were seen doing anything specific in relation to the assault.

• Whether the Labour Appeal Court created new rules on proof of common purpose that departed from established legal principles
• Whether the doctrine of common purpose was correctly applied to find the 41 employees guilty of assault
• Whether dismissal based on common purpose without proof of individual complicity in the assault was substantively fair under section 23 of the Constitution
• Whether employees who were mere bystanders or spectators could be held liable under common purpose without evidence of active association with the assault
• Whether employees had a legal obligation to intervene to stop the assault or to dissociate themselves from it

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 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. No costs order was made as this was a labour matter.

For the doctrine of common purpose to justify dismissal in labour law, there must be proof (on a balance of probabilities) that an individual employee associated themselves with the unlawful conduct. The requirements are: (1) evidence, direct or circumstantial, that the employee associated with the violence before, during, or after it occurred; (2) the employee must have manifested sharing of common purpose by performing some act of association with the perpetrators; and (3) the employee must have had the necessary intention in relation to the violence. Mere presence at the scene of violence is insufficient to establish liability under common purpose. There is no legal obligation for employees to intervene to stop violence or to actively dissociate themselves from conduct they have not been shown to have participated in. Employees cannot be required to dissociate when they never associated in the first place. Failure by an employee to provide an explanation or to disclose information does not constitute evidence of complicity. The dismissal of employees on the basis of common purpose without proof of individual complicity in the alleged misconduct is substantively unfair and violates section 23 of the Constitution.

Madlanga J acknowledged the formidable evidentiary difficulties employers face in proving individual employee complicity in violent acts committed by large groups during strikes, but emphasized that sympathy for employers must not result in innocent employees being sacrificed. The Court noted that employers can ameliorate evidentiary difficulties through modern technology such as access control systems, CCTV cameras, and other security measures. The Court observed that workplace dynamics are complex and that innocent employees may choose silence for fear of ostracism or animosity, which is "no small matter" for those who are not "sanctimonious armchair observers." The judgment commented that at a moral level one may have an obligation to intervene and save a fellow human being from physical harm, but there is no general legal obligation to do so. The Court noted it was "bizarrely" that the employees initially pleaded no assault or unprotected strike took place when clearly both had occurred. The Court acknowledged that acts of violence and intimidation during strikes (protected or unprotected) are not a rare occurrence in South Africa. Madlanga J emphasized the importance of not departing from the holding in Dunlop that presence at the time of commission is not a requirement for complicity - what matters is evidence of association, which can occur before or after the violent acts.

This judgment is critically important in South African labour law as it clarifies and reinforces the proper application of the common purpose doctrine in workplace disciplinary proceedings. It establishes clear limits on when employees can be held collectively liable for acts of violence during strikes. The judgment protects innocent employees from being dismissed merely for being present during violent incidents, affirming that "our law knows no concept of collective guilt." It addresses the tension between employers' evidentiary difficulties in proving individual participation in group misconduct and the constitutional right to fair labour practices under section 23 of the Constitution. The case has significant implications for how employers must approach disciplinary action following violent strikes, requiring proof of individual complicity rather than guilt by association. It also distinguishes between the evidentiary standards for interdicts (which may concern future conduct) and dismissals (which concern past conduct requiring proof of individual participation). The judgment will affect how large numbers of employees are treated where strikes turn violent, ensuring substantive fairness in dismissals.