Open Source Software: A Legal Explainer

The licencing of Open Source Software (OSS) is very complex, closely tied to a business’s strategic aims and developments and may have very serious legal, especially IP (copyright) repercussions.

What is OSS?

In essence OSS refers to any software that is released under numerous different open source licences that makes the source code of the software available to everyone. A very important difference between OSS and commercial software is that source code is freely available for OSS as opposed to strictly granted rights in terms of the usual licence agreements to modify and improve code in respect of commercial software.

OSS v Copyright

The above is contradictory to the automatic legal protection an author of software enjoys in respect of his creative work (software, including code) by means of copyright in terms of the Copyrights Act 98 of 1978 which stipulates that the author may decide what may be done to his work and by whom.

In terms of section 2 of the Copyright Act computer programs are eligible for copyright and does section 11B of the Copyright Act stipulates that the:

Copyright in a computer program vests the exclusive right to do or authorise the doing of any of the following acts in the Republic:

  • reproducing the computer program in any manner or form;
  • publishing the computer program in public;
  • performing the computer program in public;
  • broadcasting the computer program,;
  • causing the computer program to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the computer program, and is operated by the original broadcaster;
  • making an adaption of the computer program;
  • doing, in relation to an adaption of the computer program, any of the acts specified in relation to the computer program in paragraphs (a) to (e) inclusive;
  • letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the computer program.

With other words someone who wishes to do any of the acts stated in (a) to (h) above will need explicit consent and a licence from the author or proprietor of such software (computer program) to do so – hence the regularly granted licenses issued to users of software.

OSS clearly contradicts the above copyright protection to the extent that its main aim is to provide the software that is made available as OSS to everyone for free.

OSS Licences

OSS can be licences under a multitude of different freely available licences, each carrying its own requirements for using and modifying the source code. The Open Source Initiative (OSI) maintains a list of these open source licences at http://www.opensource.org/licenses and includes the following widely used and “special purpose” licenses:

  • Apache License, 2.0
  • New and Simplified BSD licenses
  • GNU General Public License (GPL)
  • MIT license
  • Mozilla Public License 1.1 (MPL)
  • Common Development and Distribution License
  • Common Public License 1.0
  • Eclipse Public License

To be approved by the OSI open source licenses must adhere to the following 10 open source definitions:

2.1       Free Redistribution

The license shall not restrict any part from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.

2.2      Source Code

The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicised means of obtaining the source code for no more than a reasonable reproduction cost preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a pre-processor or translator are not allowed.

2.3      Derived Works

The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.

2.4      Integrity of the Author’s Source Code

The license may restrict source-code from being distributed in modified form only if the license allows the distribution of “patch files” with the source code for the purpose of modifying the program at build time. The License must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software.

2.5      No Discrimination Against Persons or Groups

           The license must not discriminate against any person or group of persons.

2.6      No Discrimination Against Fields of endeavour

The license must not restrict anyone from making use of the program in a specified field of endeavour. For example, it may not be restrict the program from being used in a business, or from being used for genetic research.

2.7      Distribution of License

The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.

2.8      License Must not be Specific to a Product

The rights attached to a program must not depend on the program’s being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program’s license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution.

2.9      License Must not Restrict other Software

The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open-source software.

2.10    License Must be Technology-Neutral

No provision of the license may be predicated on any individual technology or style of interface.

Copy-left v Permissive Licences

A major difference between OSS licenses is whether they are permissive or copy-left.

Where copyrights allows the copyright owner to either withhold permission for his work to be used or dictate the conditions under which he is willing to consent to or allow such use, an OSS Copy-Left License requires that permission for the wide use of copyrighted software be granted. The copyright owner is thus forced to make his source code available, to control actions of others that may receive his software and factually to part with his copyright protection and valuable IP. Copy-Left License thus makes sure that all modified versions of the software remain free and open in the same way as the original software was. The GPL (Gnu Public License) is considered to be the most popular Copy-Left License.

Permissive Licenses, on the other hand, allows the copyright owner some form of control to the extent that subsequent developers can use the permissively licenced source code of the copyright owner in closed source proprietary software. The Lesser–General Public License (LGPL) is like the GPL, but allows works licensed under it to be linked to closed-sourced proprietary software, which would not be allowed under the GPL.

By Marietjie Botes
marietjie@dyason.co.za

A Woman’s Right To Dignity And Reproductive Autonomy Vs The Principle Of Pacta Sunt Servanda In Surrogacy Motherhood Agreements

It has been argued that forcing a surrogate mother who has entered into a valid and voluntary surrogacy agreement to hand over the child against her will amounts to sacrificing her rights to reproductive autonomy and dignity to the principle pacta sunt servanda. This argument extends even in cases of full surrogacy, where the surrogate mother is not genetically linked to the prospective child. In this article the writer explores the rights to dignity and reproductive autonomy as enshrined in our Constitution and the long standing principle of the law of Contracts, the principle of pacta sunt servanda.

Surrogacy is regulated by chapter 19 of the Children’s Act 38 of 2005 (“the Act”). In the case of AB & another vs Minister of Social Development, the High Court defined surrogate motherhood agreement to be an agreement between a surrogate mother and the commissioning parent(s), in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent(s) and in which the surrogate mother undertakes to hand over such a child to the commissioning parent(s) upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent(s). A surrogacy motherhood agreement will only be valid if a Court has confirmed the agreement and has satisfied itself that the surrogate mother entered freely and voluntarily into the agreement and the best interests of the child were also considered.

The Children’s Act makes a distinction between full surrogacy, which comprises of parents who are reliant on a surrogate mother to carry their prospective child on their behalf without use of the surrogate mother’s genes and partial surrogacy, which comprises of the commission parent’s genes together with that of the surrogate mother, making the child genetically linked to the surrogate mother. In the case of full surrogacy, the surrogate agreement confers full parental rights to the commissioning parents from the moment of the child’s birth and in the case of partial surrogacy, these are suspended for a ‘cooling-off’ period of 60 days following the birth of the child, during which period the surrogate mother has the right to terminate the contract and keep the child.

From the above distinction it is clear that the surrogate mother in partial surrogacy is at liberty to decide to keep the baby and terminate the surrogacy contract between her and the commission parents any time before the lapse of 60 days following the birth of the child. She can make this decision without incurring any liability except to compensate the commissioning parents for the expenses they incurred in terms of the agreement. Although it can be argued that such termination amounts to breach of good faith by the surrogate mother, it is also obvious why the mother cannot be forced to give up her own blood in this case. However what happens in a situation where the surrogate mother refuses to abide by the agreement or to perform in terms of the contract in the case of full surrogacy agreement?

The Act clearly states that upon the birth of the child, the commission parents acquire full parental rights over the child in full surrogacy. Although in this instance the surrogate mother is not genetically linked to the baby, it cannot be disputed that a bond of some sort would form between the surrogate and the baby. After all the surrogate mother does carry the baby in her womb for the whole nine or ten months, feeling the baby’s every small movement, nourishing the baby with nutrients from her body and assisting in its development. In AB & another vs Minister of Social Development it was also held that a family cannot be defined with reference to the question whether a genetic link between the parent and the child exists.

Furthermore is section 10 of the Constitution which provides that everyone has inherent dignity and the right to have their dignity respected and protected. This means that no person should be treated merely as instruments or objects of the will of others. On the other hand section 12(2) provides that everyone has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction.

From the above analysis it can then be argued that compelling a surrogate mother to hand over the child against her will or even having the courts enforce specific performance in terms of the surrogacy motherhood agreement is unconstitutional as such an order would unduly impact the surrogate mother’s right to dignity and reproductive autonomy.

The surrogate mother’s rights however stand alongside the very important principle of pacta sunt servanda. In Barkhuizen v Napier the Constitutional Court held that the Constitution requires in general that parties should comply with contractual obligations that have been freely and voluntarily undertaken. This consideration is expressed in the maxim pacta sunt servanda, which the Courts have repeatedly noted, gives effect to the central constitutional values of freedom and dignity. Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity. Ngcobo J in Barkhuizen v Napier further held that the extent to which the contract was freely and voluntarily concluded is clearly a vital factor as it will determine the weight that should be afforded to the values of freedom and dignity.

The Children’s Act requires that surrogacy agreements be confirmed by the High Court. This is a mechanism put in place so that all parties involved in the surrogacy agreement are protected, the most vulnerable being the surrogate mothers, who could be exploited. The High Court does not confirm a surrogacy agreement unless it is certain that the contract is not of a commercial nature and it is satisfied that the surrogate mother is willing and capable to act in this capacity.

It thus can also be argued that surrogate mothers should be ordered to abide by their own choices in accordance with the principle of pacta sunt servanda. As held in Barkhuizen v Napier, the fact that a contract was entered into freely and voluntarily is a vital factor that should be afforded to the values of freedom and dignity. Surrogate mothers in South Africa enter into a surrogate motherhood agreement on free will ensured by the confirmation component of the agreement.

By Philile Khoza
philile@dyason.co.za

The price of immortality: Henrietta Lacks and her immortal cell line

Ever wondered how it would be if a part of you actually continue to live forever? Would you be comfortable with that and would you want to exercise some form of control over it still? Or how it would affect your loved ones left behind? Henrietta Lacks never dreamt of immortality or even thought that it was possible, but is her cells, that are still alive today almost 70 years after her death, still causing lively legal and ethical debates around the world.

Human bio-specimens have played a critical role in scientific and medical research. It has provided insight into the workings of human biology, lead to targeted approaches to detect and treat health conditions and how to reduce the risk of future disease. In recent decades it has also given momentum to precision medicine and the development of innovative treatment methods. The application areas are almost limitless and is it easy to see the eventual benefits for greater society.

However, the collection, storage, use and sharing of bio-specimens have raised serious concerns about informed consent, oversight, large-scale data sharing, privacy, confidentiality and commercialisation of research results, amongst others. Legal and ethical debates about all of the mentioned issues will probably continue for ever, but has the story of Henrietta Lacks and the medical profession’s failure to obtain consent struck a nerve with academics, legal and medical professionals and the general population alike.

Henrietta Lacks, an African-American women, coming from a poor tobacco farming community, was diagnosed with a particularly aggressive form of cervical cancer at Johns Hopkins Hospital in 1951. During her diagnosis and treatment tissue samples were given to a researcher without her knowledge or consent. At that time researchers have long endeavoured to grow human cells outside the body to enable further research on cells, but without success. It soon became clear that Henrietta’s cancer cells, labelled as “HeLa”, being the first two letters of her name and surname, were capable of not only surviving outside her body, but were profusely dividing in culture indefinitely! This was a major scientific breakthrough and did Dr George Gey shared his breakthrough by giving numerous vials of cells away. Since then HeLa cells have been lucratively commercialised on large scale.

It was only in 1973, two years after Henrietta’s real name was published as the source of the HeLa cells in a scientific journal that her family learnt about the HeLa cells. Notwithstanding the dismay of the Lacks family of not being acknowledged in the development of the immortal cell line and without consultation or notification, scientists from the European Molecular Biology Laboratory in Heidelberg, Germany published the entire genomic sequence of the HeLa cell line in March 2013 in an on-line open access database. This caused an uproar and over the following four months the National Institutes of Health (NIH), with the assistance of Rebecca Skloot, the writer who persevered for 10 years with the Lacks family to eventually win their trust and published the HeLa story as “The Immortal Life of Henrietta Lacks”, the Lacks family was engaged in extensive discussions. A solution was found that culminated in a consent agreement setting forth how genome sequence data from HeLa cell lines may be published and shared for additional research. A HeLa Genome Data Access Working Group was created to serve as watchdog to consider applications for access to and the use of the HeLa sequence, always on condition that the necessary acknowledgement be given to Henrietta Lacks and her family.

It must, however, be borne in mind that at the time when Henrietta’s tissue samples were collected, there was absolutely no laws or regulations available for biomedical research. The collection, use and sharing of her tissue sample and cells have thus been completely legal. The Nuremberg Code, laying down principles for medical research to be conducted on human participants, resulting from the Nuremberg Military Tribunal hearings in United States v Brandt in 1947, formalised consent but did not touch on biomedical research. Henrietta’s story clearly demonstrates the difference between law (researchers having legally obtained her tissue samples) and ethics (her human dignity and respect being disregarded with respect being the foundation of informed consent). The same action can thus be legal, but ethically unacceptable. A law can thus be unethical. Numerous examples of laws disregarding ethics can be found in history, both locally and internationally. In an age where scientific development progresses so much faster than any law can ever keep up, bioethics (and industry self-regulation) becomes increasingly important.

Informed consent is described as the process of enabling individuals to make voluntary decisions about participating in research with an understanding of the purpose, procedures, risks, benefits and alternatives. Informed consent is established on the premises of well-established ethical principles which include respect for persons, beneficence and justice. Following from this, the key aspects of informed consent entails the provision of information about the research that a reasonable person would want to know, in a manner and language understandable to that person and under conditions that are free from coercion or undue influence. Informed consent could easily have been obtained from Henrietta – if it was the norm of the day. Although not legally required, ethical principles should be ingrained and considered during the delivery of all professional services.

In South Africa individuals’ rights to bodily integrity are constitutionally protected as section 12(2)(c) of our Constitution requires informed consent from any individual who is subjected to medical or scientific experiments. Section 71 of the National Health Act 61 of 2003 specifically prohibits any research or experimentation on a living person without such a person’s written informed consent, after being adequately informed of the positive or negative consequences of the proposed research to his or her health. Unfortunately the only definition of informed consent in the National Health Act is found is section 7(3) according to which it means “… consent for the provision of a specified health service given by a person with legal capacity to do so and who has been informed as contemplated in section 6.” Section 6(1) then sets out the nature and scope of the information that should be disclosed to a patient. In May 2008 the Health Profession Council of South Africa (HPCSA) issued general ethical guidelines for health researchers to serve as reference for research institutions, organisations and researchers registered with the HPCSA who are involved in biomedical or scientific research. Guideline 6.3 thereof specifically deals in detail with the researcher’s responsibilities in respect of obtaining informed consent from participants. It states that researchers must provide information to participants “…in a language that the participant understands and in a manner that takes into account the participant’s level of literacy, understanding, values and personal belief systems.” And in 2006 the South African Department of Health also issued guidelines for good practice in the conduct of clinical trials with human participants in South Africa, which purpose is to provide South Africa with clear standards of clinical practice in research in accordance with sound scientific and ethical standards.

If Henrietta has been diagnosed and treated today in South Africa, and if researchers were still interested in her tissue samples for research purposes her informed consent would be required … whether she would truly understand the research risks, goals and aims is yet another ethical debate.

Today we have numerous pieces of legislation, regulations, guidelines and policies that require and regulate the actual content of informed consent to protect research participants. But as so often happen, legislation is a mere symptom or consequence of a disease and in the fast developing world of biomedical research adequate legal regulation almost always comes after the fact. It took a brave writer, Rebecca Skloot, to tell the story of Henrietta Lacks. A story that served as the catalyst for policy change. Laws may not always exist to protect the vulnerable, but bioethics have been around for as long as there has been life and should serve as a guide in the absence of law.

By Marietjie Botes
marietjie@dyason.co.za

The basis upon which municipalities are entitled to legislate on environmental matters and the importance of this role

The case of Le Sueur v Ethekwini Municipality [2013] ZAKZPHC 6 is a significant and ground breaking case that provides a good illustration of how the South African courts interpret and enforce the need for cooperative environmental governance. The case, by making reference to various sections of The Constitution of the Republic of South Africa and by linking these sections with the idea of co-operative governance, explains the basis upon which municipalities are entitled to legislate despite the environment being designated in The Constitution as a functional area of National and Provincial competence. The idea of co-operative governance, recognising the different and distinct functions of each level of governance, is also used to explain why it is important for the municipality, having distinct and different knowledge with regards to their local environment, to be entitled to legislate on environmental matters.

In this case, the Ethekwini Municipality in KwaZulu Natal introduced amendments to the Ethekwini Town Planning Schemes known as Durban Municipality Open Space System (D-MOSS) by resolution of the Town Council and the Municipality. In the case:

The applicant questioned whether, in as much as the amendments deal with the environmental functional area, the Municipality does have authority in terms of the Constitution or any law of general application to legislate on environmental issues.

The applicants argued that the D-MOSS amendments were not legally valid and were unconstitutional as the municipality lacks authority, in terms of the Constitution and any law of general application, to legislate on environmental matters as these are matters reserved for the National and Provincial sphere of government. The court in this case decided that the municipalities do have the power to legislate on matters regarding the environment and laid out the basis on which municipalities are entitled to perform such a function.

Co-operative governance is an ideal that is embodied in Chapter 3 of The Constitution.

The Le Sueur case referred to the Maccsand v City of Cape Town 2010(6) SA 182 (CC) case which in paragraph 47 said the following about co-operative governance;

The Constitution allocates powers to three spheres of Government in accordance with the functional vision of what is appropriate to each sphere. But because these powers are not contained hermetically sealed components, sometimes the exercise of powers by two spheres may result in an overlap. When this happens, neither sphere is intruding into the functional area of another. Each sphere would be exercising power within its own competence. It is in this context that the Constitution obliges these spheres of Government to co-operate with one another in mutual trust and good faith, and to co-ordinate the actions taken with one another.

Thus co-operative governance is an idea that recognises that while each level of government (National, Provincial and Local) has its own distinct powers and functions, these powers and functions are closely related to and sometimes overlap with the powers and functions of another level of government. It is due to this close relationship and overlap that each level of government needs to communicate and co-operate with the other levels of government when exercising their functions so as to ensure that one level does not exercise their powers or perform their functions to the detriment of another level of government.

Another question which the court answered is why it is important for municipalities to have the power to legislate on environmental matters. The court in the case submits the following;

Although matters relating to the environment may be said, in terms of the Constitution, to be the primary concern or sphere of the National and Provincial responsibility, that Local Governments in the form of Municipalities are in the best position to know, understand, and deal with issues involving the environment at the local level.

Thus it can be concluded that Municipalities have a more intricate and in depth knowledge of their particular municipal area and of the particular environment in their municipal area and thus will be more aware of what will be beneficial and detrimental to their particular district. This puts them in a better position than National and Provincial levels of government to administer an environmental matter in the best and most efficient way in their municipal area and thus it is important that they be given the opportunity to ensure the best for their municipal area and in this way with each Municipality ensuring the best for their district, the best interests of the country as a whole are ensured.

The main question in the case was whether the Municipality has the authority to legislate and if it does, on what basis does it have such authority. The case recognised that according to the Constitution, the environment falls into Schedule 4, Part A of the Constitution and that these matters are functional areas of current National and Provincial competence. This suggests that Municipalities at Local Government level are excluded from being able to legislate on matters of the environment as the Municipality may only perform activities in terms of their specific powers which are provided for in Parts B of Schedule 4 and 5 of the Constitution of the Republic of South Africa 1996. Section 24. According to the case, this view is too narrow and is thus incorrect. What is suggested in the case is that Schedule 4 and 5 must be read together with Section 24 of the Constitution and the Bill of Rights. Section 7(2) of the Bill of Rights provides: ‘the state must protect, promote and fulfil the rights in the Bill of Rights.’ The use of the word ‘State’ in this section would be interpreted according to section 40(1) of the Constitution to include National, Provincial and Local levels of government. Thus it can be said that Municipalities are obliged to protect, promote and fulfil the rights in the Bill of Rights when they exercise their delegated powers. Section 24 of the Bill of Rights encompasses the environmental right and places an obligation in terms of section 7(2) on all levels of government including local levels and thus including Municipalities to protect and enforce the environmental right ‘through reasonable legislative and other measures’. This thus suggests that the local level of government included in the ‘state’ in section 7(2) is entitled on the basis of s24 to legislate on environmental matters in order to protect and enforce the environmental right contained therein when exercising any of its powers or performing any of its duties.

Thus what is clear is that the municipalities may legislate on matters of the environment when performing their duties in order to fulfil their obligation of environmental protection in the Bill of Rights. Thus what must be asked is which particular duty of the Municipalities would require legislation on the environment. In the Le Sueur case, the court determined that Municipalities have a role to play in administration and enforcement of environmental law by virtue of their function of municipal planning. It is submitted in the case;

Municipalities under the banner of ‘municipal planning’ have historically always exercised executive legislative responsibility over environmental affairs within a municipal area. The drafters of the Constitution were aware of this fact and recognized this fact in the manner in which the newer Constitutional dispensation was formulated.

Therefore, what can be concluded from the case is that the court has accepted that the Municipalities power to implement municipal planning encompasses the power to legislate on matters regarding the environment.

The problem that this power of the municipality poses is that ‘there will be an overlap between the functional area of “municipal planning” in Part B of Schedule 4 and the functional area of “environment” in Part A of Schedule B.’[1] This problem can be easily addressed with reference to co-operative governance. The case makes reference to the Warey Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 399 which states;

There is no reason why the two spheres of control cannot co-exist even if they overlap and even if, in respect of the approval of sub-division of ‘Agricultural Land’ the one may in effect veto the decision of the other. It should be borne in mind that the one sphere of control operates from a municipal perspective and the other from a national perspective. Each having its own constitutional and policy considerations.

Thus each sphere is responsible for the matter in relation to their particular sphere of government and no sphere is performing the powers of another sphere. Co-operative governance requires that where there is an overlap which clearly exist with regards to the environment, each sphere must communicate with one another to ensure that the power is effectively carried out in each sphere of government ie to ensure that one sphere does not exercise their powers to the detriment of another sphere.

The court in the Le Sueur case granted the municipality the power to legislate on matters of the environment within their municipal areas. The court stated that when municipalities exercise their power in terms of municipal planning a holistic approach must be followed. Such an approach means that the function of municipal planning will be carried out in accordance with the duty placed on the municipalities in terms of the Bill of Rights and more specifically in terms of the environmental right embodied in the Bill of Rights. Therefore, what can be concluded is that when the municipalities perform their function of municipal planning, they are obliged, in terms of the Bills of Rights and section 152 of the Constitution to take the environmental right into consideration and ensure that it performs its duties in accordance with such right and in accordance with the principle of co-operative governance. The court also confirmed that municipalities are better equipped, due to their intricate knowledge of their municipal area’s environment, to legislate on matters of the municipal area’s environment, and that it is important for them to do so as they will be better able to ensure the safety of their environment in their municipal area.

By Kristy Pierce
kristy@dyason.co.za

[1] W Freedman ‘The Legislative Authority of the Local Sphere of Government to conserve and protect the environment: A Critical analysis of Le Sueur V Ethekwini Municipality [2013] Zakzphc 6’ (30 January 2013) Potchefstroom Electronic Law Journal 589.

The principle of derivative misconduct: employer’s final recourse against employees who associate themselves with proven acts of misconduct committed by their colleagues.

It often happens that an employer is not in a position to obtain first-hand information about the acts of misconduct committed by certain employees at the workplace and that such information is within the employees’ exclusive knowledge.

In order to bring the guilty employees to book, the employer will need some assistance from the employees with first-hand knowledge of the acts of misconduct that had occurred. The difficulty that an employer often encounters is the unwillingness on the part of the employees to come forth with such information. The principle of derivative misconduct entitles the employer to resort to dismissals against such reluctant employees.

The principle of derivative misconduct was succinctly expounded by the Labour Court in the matter of Dunlop Mixing and Technical Services (Pty) Ltd & Others (hereinafter “Dunlop”) v National Union of Metalworkers of South Africa and Others (hereinafter “NUMSA”) (D345/14) (2016) ZALCD 9 (11 May 2016). In this matter Dunlop employees were all members of NUMSA. In August 2012, they embarked on a protected strike in furtherance of a wage dispute. The strike was characterised by violence.

Dunlop responded by lodging an application for an interdict at the Labour Court, in an attempt to halt the violence. The Labour Court granted the interdict order, which was directed at prohibited the striking employees from engaging in violence and entering Dunlop’s premises during the strike. However some employees disregarded the court order and continued with their violent acts. As a result of this, Dunlop dismissed 107 employees, of which 29 were dismissed for engaging in violence (herein after “direct misconduct”) and the remaining 78 were dismissed for derivative misconduct.

Aggrieved by the dismissals, the employees who were represented by NUMSA, referred the matter to the CCMA, where they challenged the fairness of their dismissals. Dunlop vehemently defended the matter, as it was adamant that the dismissals were fair. At the arbitration, Dunlop justified both direct misconduct and derivative misconduct. Dunlop adduced a video and photograph showing the volatile occurrence of violence and some of the employees were identifiable. It also led 9 witnesses who testified that the employees disregarded the call to cease violence or if not involve in violence, to come forward to assist Dunlop to identify the perpetrators or exonerate themselves.

The CCMA was satisfied that there was an overwhelming evidence adduced by Dunlop which NUSMA failed to challenge. The CCMA ruled that the dismissals for employees charged with direct misconduct was both procedurally and substantively fair. However, the Dismissals for most employees charged for derivative misconduct were ruled to be both procedural and substantively unfair. The CCMA held that Dunlop had failed to prove on a balance of probabilities that the employees were present during the strike and that they knew who the perpetrators were. Finally, Dunlop was ordered to reinstate the employees.

Dunlop was discontent with CCMA’s ruling, therefore it lodged an application for review at the Labour Court in terms of section 145 of the Labour Relations Act (LRA), No. 66 of 1995. In this application, Dunlop only challenged the CCMA’s ruling in respect of the dismissals for derivative misconduct, arguing that these dismissals were fair and that the CCMA failed to consider the material evidence adduced during the arbitration. Dunlop confined its argument on the breach of duty of trust that it believed was committed by the employees. Dunlop strongly argued that by failing to come forward to identify the perpetrators or exonerate themselves, meant that an inference could be drawn that the employees were present during the strike and that they had knowledge of the identities of the perpetrators.

The Labour Court heavily relied on the Labour Appeal Court’s ruling in Chauke & Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC), where it was held that a worker in a group which includes the perpetrator may be under a duty to assist management in bringing the guilty to book. It was also held that where an employee has information on the perpetrator’s misconduct, but fails to come forward to share such information with the employer, this amounts to a misconduct itself, which may warrants a dismissal.

The Labour Court was critical of the CCMA, for failing to consider the nature and the extent of the misconduct in question and the evidence adduced by Dunlop. The Court held that the CCMA also disregarded the seriousness of the misconduct, which amounted to more than just a simple failure on the part of the employees to assist the employer to identify the perpetrators. The Court stressed that this failure amounted to a breach of trust relationship.

The Court held that the CCMA failed to rule on the issue raised by Dunlop that by remaining silent an inference could be drawn against the employees that they were present during the strike and that they had knowledge of the identities of the perpetrators. The Labour court held that the right to silence is something that only finds application in criminal law and not civil law. The Court was satisfied that the dismissals for derivative misconduct were both procedurally and substantively fair.

The ruling of the Labour Court has significantly raised the standard of duty of good faith that employees owe to the employer. Therefore, employees should meet this standard by being co-operative and responsive when an employer is investigating acts of misconduct committed by their colleagues.

By Jeffrey Maluleke
jeffrey@dyason.co.za