Association of Mineworkers and Construction Union and Others v KPMM Road and Earthworks (Pty) Ltd (JA 147/2017)  ZALAC 28; (2019) 40 ILJ 297 (LAC);  4 BLLR 340 (LAC) (31 October 2018)
- 'Common purpose' applies when it is established that the individual was present at the scene of the violence, was aware of the assault on the victim, intended to have common cause with those who perpetrated the assault, and had the required 'mens rea' or intention to commit the crime.
- The 3 requirements for a contempt of court order are that the applicant must be able to show that the order was served on the party and they failed to comply with it, and thereafter the evidentiary burden shifts to the party to establish a reasonable doubt as to whether the non compliance was wilful and 'mala fide'.
- If an employer seeks an interdict against a union, it must draft a notice of motion that gives clear content to the obligations it wishes to impose upon the union.
The Labour Court granted an order interdicting Amcu members participating in a protected strike, from engaging in unlawful and violent acts, including intimidating, harming, threatening or assaulting non-striking workers and subcontractors, blocking access to the employer's site, and blockading a portion of the nearby national road.
In terms of the interdict Amcu had 'to take all reasonable steps within its power' to persuade its members not to engage in such unlawful action. The order was served on the Union and copies given to striking employees. Despite this, the striking employees continued with their unlawful action. The employer wrote to Amcu complaining of these incidents, but received no response. The employer then launched an application for contempt of court against the employees and the Union, on the basis that they had not complied with the interdict.
The LC in KPMM Road & Earthworks (Pty) Ltd v Amcu & others condemned the resort to unlawful conduct, violence and intimidation during the course of a protected strike and its detrimental effect on collective bargaining. The LC found 56 Union members and the Union to be in contempt of court, and ordered Amcu to pay a R1 million fine, suspended for 3 years on condition that the Union was not held to be in contempt of any further LC order during that period. The individual employees were ordered to each pay a fine of R1000, which was to be deducted from their salaries.
The employees and the Union took the LC judgment on appeal to the LAC.
With regard to the contempt order against the individual members, the LAC said the LC had wrongly applied the doctrine of common purpose, under which the contempt order had been granted. This doctrine applies when a group of people are held jointly accountable and liable as a result of acting together with a 'common purpose'. The LAC confirmed that 'common purpose' applies when it is established that the individual being held liable -
- was present at the scene of the violence;
- was aware of the assault on the victim;
- intended to have common cause with those who perpetrated the assault, shown by doing something in association with the perpetrators that manifested a common purpose; and
- had the required 'mens rea' or intention to commit the crime.
With regard to the contempt order against the Union, the LAC considered the basis upon which the LC had found Amcu to be in contempt of the order. The LAC highlighted the 3 requirements for a contempt order to be granted, namely that -
- the applicant must be able to show that a court order was served on the party and that they failed to comply with it;
- and thereafter the evidentiary burden shifts to the party to establish a reasonable doubt as to whether the non compliance was wilful and 'mala fide' (in bad faith).
The LAC noted the different interpretations placed on the terms of the order that Amcu had to 'take all reasonable steps within its power' to persuade its members not to engage in unlawful action, and pointed out that Amcu had taken certain positive steps - namely to ensure that its members did not congregate within 2000 metres of the site, and that meetings were held on a daily basis at which Amcu informed its members of the need to comply with the court order.
The LAC concluded that the core of the problem was that the wording of the order was too vague and open to interpretation. As such, it was not possible to find beyond a reasonable doubt that Amcu was wilful and had acted in bad faith in not complying with the order. The LAC went on to say that if an employer wishes to obtain relief of this nature against a union, it should present the court with an order that clearly spells out the obligations it seeks to impose upon the union. These could for example, include the very steps that the LC attempted to 'read in' to the wording of the order, as summarised above.
On this basis the LAC granted the Union and its members the appeal and overturned the LC judgment.
Extract from the judgment:
 This case concerns important implications for the use of contempt proceedings in the fraught context of South African industrial relations. The appeal before this Court is against an order of the court a quo in which the first appellant and the second to further appellants ("the individual appellants") were held to be in contempt of an order of Lagrange J of 18 July 2016 and in terms of which first appellant was ordered to pay a fine of R 1 000 000.00 which payment was suspended for three years on condition that the first appellant was not held by the Labour Court to be in contempt of any order of the Labour Court during such period. The individual appellants were ordered to pay a fine of R 1000 each, which amounts were immediately payable and could be deducted from their salaries.
 On appeal, two separate issues were raised, namely whether the individual appellants were guilty of contempt and whether the first appellant could be found to be guilty of contempt. In respect of the former, the court a quo applied the principles of common purpose to determine the guilt of the individual appellants. Sitting in the court a quo, Snyman AJ said the following in his judgment:
'Where a group of striking employees continue with unlawful conduct in the face of an interdict and order of this Court, it can be said that, even if contempt of Court is regarded as criminal behaviour, that these employees continue to act with a common purpose. It is not necessary for an employer to establish a nexus between each individual employee sought to be held in contempt of Court, and the misconduct or unlawful conduct perpetrated. Neither is it necessary to identify every individual perpetrator. These employees continue to act for a common purpose, in support of the exercise of their right to strike.' When the matter was argued before this Court, on appeal, Mr Watt-Pringle, who appeared together with Ms Darby on behalf of respondent, conceded that there was no basis by which to hold the individual appellants guilty on the basis of the common purpose doctrine. In the first place, there was no mention in the founding papers of individual employees being alleged to be in contempt on the basis of common purpose. Respondent was unable to identify which of the individual employees were guilty of contempt. In short, the concession was made that the evidence could not justify the application of the common purpose doctrine.
 In Makhubela v S, the Constitutional Court set out a series of requirements which are necessary to justify the application of the doctrine of common purpose. In the first place, it must be shown that the individual was present at the scene where the violence was committed. That individual must have been aware of the assault on the victim. The individual must have intended to have made common cause with those who actually perpetrated the assault, that is he/she must have manifested some common purpose with the perpetrators of the assault by himself or herself performing some act of association with the conduct of the others. Finally, the individual must have possessed the requisite mens rea.
 In this case, on these papers, none of the individual appellants, with the exception of two, were even placed at the scene of the incidents giving rise to the alleged contempt. No evidence was produced that these individual appellants were aware of the alleged incidents, giving rise to the alleged contempt or that they had manifested common cause with those allegedly breaching the court order. There was certainly no evidence which justified a finding of mens rea. Significantly, two persons identified Kenneth Masenya and Sophia Utla were not listed as amongst the second and further appellants and the list of names annexed to the court order, nor were they identified by the respondent as members of the first appellant. In none of the incidents set out by the respondent in its founding affidavit are the individual appellants identified as having participated or having been aware of these various incidents.
 In short, the finding of the court a quo that the common purpose doctrine applied, in this case, is in clear breach of the established principles of common purpose and, accordingly, there was no legal basis by which the court a quo could have come to its finding with regard to these appellants. It is for this reason that the concession made by Mr Watt-Pringle was a wise one in the circumstances.
 I turn then to deal with the finding in respect of the first appellant. The central finding of the court a quo against first appellant is encapsulated in the following passage from the judgment:
'I am satisfied that in reality, all the first respondent did was to convey the order to its members, tell them to comply, and then washed its hands of what may happen thereafter. This is evident from the attitude and approach adopted by the first respondent in the answering affidavit which in essence seeks to place blame on the applicant for trying to protect its business and non-striking employees with a request for punitive costs and accepting no responsibility, and also seeking justification on the basis of contending that it must be remembered that the strike was protected. In short, the attitude of the first respondent was that of what was taking place was the applicant's problem.' In a similar fashion to this approach, Mr Watt-Pringle submitted on appeal that first appellant should, at the very least, have investigated the alleged misconduct of its members and, having established the facts, devised appropriate steps to deal with the problem. If the allegations were found to be true, then first appellant ought reasonably to have appointed marshals to monitor the conduct of its members so that it could react appropriately to the facts that it had established. The principles of the procedure for civil contempt are well established, having been set out luminously by Cameron JA in Fakie v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 42. The applicant is required to prove three requisites for the grant of the order, namely service or notice of the order, noncompliance and wilfulness and mala fides in respect of this noncompliance. Having proved these requisites, Cameron JA stated:
'once the applicant had proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.'..............................
 In this case, respondent contends, in line with the judgment of the court a quo, that more was required of first appellant than the convening of meetings where members were informed of the implications of a court order. To that, as Mr Boda who appeared together with Ms Collet on behalf of the appellant noted, the first appellant had shown in its answering affidavit that it had gone further and ensured that its members would not congregate within the 2000 metres parameter. There is, therefore, a dispute as to what constitutes the taking of "'all reasonable steps within its power to persuade". Significantly, both the court a quo and Mr Watt-Pringle sought to give these words an expansive interpretation. In short, respondent associated itself with the findings of the court a quo, that what the order envisaged was a continuous marshalling of the striking employees and having the responsible union officials continuously present "on the ground" to deal with instances of a violation of the order. Furthermore, the employer should be kept "constantly appraised of the efforts" of first appellant.
 The very nature of these submissions indicates the core of the problem: the wording of paragraph 2.7 of the order is too vague. The words thereof were open to a different interpretation which is evident from the competing versions set out in the founding and answering affidavits. To contend, on the basis of such an open-textured order, that the respondent had proved beyond a reasonable doubt that the first appellant had the requisite wilfulness or that it exhibited mala fides which would justify such a finding of wilfulness and mala fides (even though there is an evidential burden on the first appellant) cannot be upheld in these circumstances.
 This finding should not be interpreted as giving succour to any form of conduct by union members or other employees which constitutes violence, intimidation or other unlawful behaviour pursuant to a strike. The very purpose of the LRA is to ensure that industrial conflict is regulated within the parameters of law, which manifestly includes a punctilious adherence to the criminal law. However, if an employer wishes to obtain relief against a union in circumstances similar to that of the present dispute, it behoves its legal advisers to draft a notice of motion which gives clear content to the obligations which it wishes to impose upon the union.
 It may well be that the obligations which the court a quo sought to read into the generalised formulation of para 2.7 of the order could constitute the kind of guidance which is required in a suitable order. Once the notice of motion is so drafted, it is possible for the union to argue what it may be able to do in the circumstances of the industrial dispute and for the court effectively to engage in a dialogue with the parties in order to craft an order whereby the obligations imposed upon the union are clear to all concerned. This did not happen in this case and, accordingly, the court a quo erred in finding that the first appellant exhibited the requisite wilfulness and mala fides to justify the order it granted.