THE COMMON PURPOSE DOCTRINE NUMSA obo Aubrey Dhludhlu & 147 others // Marley Pipe Systems (SA)(Pty) Limited [2022] ZACC 30

The Doctrine of Common Purpose is derived from criminal law principles. In essence, the Doctrine “ … imputes liability for an act of the perpetrator of a criminal act to those who associate themselves with the act before or during its commission.”. 

As the implications of such imputed liability may seriously affect another individual’s rights, the courts must be particularly careful when applying the criteria of this Doctrine. 

The Constitutional Court (“CC”) in the abovementioned judgment held that the Labour Court (“LC”) and Labour Appeal Court (“LAC”) unfortunately imputed liability to a group of employees by creating additional Doctrine criteria, which was incorrect in those circumstances.


Marley Pipes Systems (“Marley”) is a company which operates within the plastics industry. On 13 July 2017, a wage increase was communicated to Marley’s employees and the members NUMSA’s shop steward. NUMSA members (Marley’s employees), unhappy with the increase, embarked on an unprotected strike on 14 July 2022. 

At the start of the strike (in the early morning) the members gathered in the canteen awaiting an address by Marley’s Human Resources Manager, Mr. Steffens.  When he did not arrive, the members moved towards his office (later that morning). At the commencement of the strike the members marched, sang, danced and carried placards. They continued to do so when moving to Mr. Steffen’s office and calling for his removal. 

When Mr. Steffens came out to speak to the members, these members physically attacked and assaulted him. Mr. Steffens managed to escape the attack and sought medical attention. Marley called in the police to quell the unrest and violence, and obtained an interdict from the LC.

Marley held disciplinary hearings for the members and thereafter dismissed approximately 148 members. The two allegations on which the dismissals were based were (1) the assault of Mr. Steffens; and (2) the participation in an unprotected strike. 136 members were found guilty of the assault on the basis of the Doctrine. The other 12 members were found guilty of being involved in the actual assault on Mr. Steffens. 

The members referred an unfair dismissal dispute to the CCMA and, once conciliation failed, the members approached the LC. The LC held the members were guilty of misconduct and upheld the dismissal and awarded damages in favour of Marley. Only 12 members were positively identified as having been involved in the actual physical assault of Mr. Steffens but the dismissal for the rest of the members was held to have been fair.  

The members appealed the matter in the LAC. The LAC held that common purpose had been established due to, inter alia, (1) no evidence that the members distanced or dissociated themselves from the actions, during the assault or thereafter, of the group and (2) no one had intervened to stop the assault on Mr. Steffens. 

The CC held that the LAC created new principles which were not in line with the Doctrine, i.e. a bystander must take steps to distance themselves from the act of the actual perpetrator, and a bystander should intervene and protect another from physical harm. The CC held that this was incorrect and referred to the Doctrine’s main principles to establish liability, as set out in S v Mgedezi [1988] ZASCA, namely: 

The individual must –

  1. have been present at the scene where the violence is being committed;
  2. be aware of the assault on the victim;
  3. have intended to make common cause with those who were actually perpetrating the assault;
  4. manifest the sharing of the common purpose with the perpetrators of the assault by performing some act of association with the conduct of the others; and 
  5. have had the requisite mens rea (criminal intent), i.e. the individual must have intended to harm or kill the victim. 

The CC further held “… that 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.”. Through the CC’s  analysis, it was, inter alia, held that –

  1. though the LAC created new criteria, it did not explain where these additional obligations came from. While there may have been, on a moral level, an obligation to intervene, there is none in law;
  2. no other perpetrators were actually identified in excess of those 12 members; and
  3. there was no evidence that, as a group, the striking members planned to assault Mr. Steffens. The strike commenced in the morning with marching, singing and dancing before it moved to Mr. Steffen’s office where the assault took place. Such behaviour is normal when striking and can not result in automatic association for the purpose of the Doctrine. 

The CC held that the above was insufficient to convince it that all the members demonstrated an act of association. The CC took issue with two aspects of the LAC judgment, i.e. (1) the members did not disassociate from the assault; and (2) they were only rejoicing. 

Finally, the CC held that the principles applicable to the Doctrine were not satisfied and the matter was remitted to the LC to consider what ought to be done with regards to sanctioning now that the aggravating fact of severe assault is out of the way.

In summary, Marley should have placed a greater emphasis on the investigation process to ensure the principles of the Doctrine were met before embarking on the disciplinary enquiry and dismissing all the members in terms of the Doctrine where it could only establish that only 12 members were part of the actual assault. 

Candace Bachmann – Attorney

Justine del Monte & Associates Inc