The Constitutional Court has ruled in favour of NUMSA in a matter involving strike violence and common purpose.
Unusually, the matter was determined based on the parties’ papers without an oral hearing.
Mr Steffens, a member of management, was violently assaulted during an unprotected strike by NUMSA members.
12 employees were identified to have engaged in the actual physical assault. 40 other employees were at the scene of the assault but did not actively participate in the assault.
The Constitutional Court found that at a moral level, one may have to intervene and save a fellow human being from physical harm, but that there is no general legal obligation to do so. It also found that there is no obligation to depart from the scene, and that there is no rule that there can be no bystanders or spectators.
The court also found as follows:
“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”. 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 taking 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.”
A copy of the judgment is available here:
”[Judgment
C233CT 233-21 NUMSA obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd”]
