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The concept of derivative misconduct has in the past come to the aid of employers in disciplining employees who are reticent about disclosing information that would support the prosecution of an offence. Though dismissal based on derivative misconduct is designed to target the perpetrators of the original misconduct, the justification is wide enough to encompass those innocent of it, but who through their silence make themselves guilty of a derivative violation of trust and confidence. In applying the concept of derivative misconduct, South African labour courts have placed too much emphasis on the unilateral duty of good faith owed by the employee to the employer rather than the reciprocal nature of the duty and the true realities of South African industrial relations. The ground-breaking judgment of the Constitutional Court in National Union of Metalworkers of South Africa (NUMSA) obo Nganezi v Dunlop Mixing and Technical Services (Pty) Limited (2019) 40 ILJ 1957 (CC) crafted significant principles in relation to the application of derivative misconduct within the context of collective bargaining. This article seeks a critical unpacking of the legal quagmire, which has not been fully addressed by the Constitutional Court, and to provide a way forward that may be adopted by employers to promote a spirit of fairness in the employment relationship.

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On 18 September 2019, the Constitutional Court confirmed that the common-law defence of “reasonable and moderate chastisement” is unconstitutional as it unjustifiably violates sections 10 and 12(1)(c) of the Constitution of the Republic of South Africa, 1996. As a result, parents are no longer permitted to punish their child at home by way of inflicting physical punishment behind a facade of discipline. Despite the aforesaid, it should be noted that corporal punishment in the private sphere is not explicitly prohibited by South African legislation. In addition, South Africa’s legislative system lacks an appropriate regulatory framework to administer the anticipated proliferation of assault cases against parents. It is against this backdrop that this article first analyses the current legislative framework regulating the protection of children from physical punishment, and then follows with a succinct overview of the Constitutional Court ruling. The article assesses whether the mere repeal of the common-law defence of “reasonable and moderate” chastisement will be sufficient to eradicate corporal punishment in the private sphere, and if not, whether legislative prohibition and/or other interceding strategies will be required to give effect to the objective of the Constitutional Court ruling. In this regard, by way of comparative research, the legislative framework adopted by Sweden, being the first country in the world to prohibit all forms of corporate punishment of children is evaluated. Lastly, recommendations are made for the incorporation of practical steps, including possible legislative measures, to establish a regulatory framework from a children’s rights perspective to prohibit corporal punishment in the private sphere. Accordingly, for purposes of analysis and consideration, a qualitative approach is applied for purposes of the research. Primary sources such as the Constitution, case law, legislation, governmental documents, statistical data and research reports are consulted in conjunction with journal articles and textbooks.

The advent of the Constitution, as well as a reorientation in societal values, has seen old Western traditional rules being confronted with new challenges. The era of social change has consequently underscored the need for family law reform in certain areas of the law. A key aspect of family law and one that has come under constitutional scrutiny in recent times is that of persons living together as same-sex or heterosexual life partners. Life partnerships have none of the ex lege consequences of a civil marriage, and as such the consequences of a legally recognised marriage do not generally apply to life partners. A range of statutes have, however, given rise to specific spousal benefits being awarded to life partnerships , whilst, in the absence of same-sex partners being able to legalise their relationships, a number of ad hoc judgments have extended certain additional consequences of a civil marriage to same-sex life partners. The disparity in extending spousal benefits to same-sex life partners, to the exclusion of heterosexual life partners, raises the question of the tenability of the present legal position of life partnerships in light of the fact that the Constitution of South Africa is underpinned by values of equality and non-discrimination. Despite a decade of the aforementioned inequality, there seems to have been some movement made in restoring the dissimilarity of benefits afforded to same-sex life partners to the exclusion of their heterosexual counterparts. In this regard, the Supreme Court of Appeal has, of late, delivered judgments affording unmarried dependants in heterosexual life partnerships the locus standi to institute claims for loss of support arising from the wrongful death of a breadwinner. In this regard the case of Paixão is of particular importance as the case factors in the boni mores of society by finding that a tacit agreement between heterosexual life partners establishes a contractual reciprocal duty of support that is worthy of protection. The Paixão decision therefore shows a willingness to advance South Africa’s common law by affording protection to unmarried heterosexual life partnerships in line with their same-sex counterparts, as precipitated by the rights and values laid down in the Bill of Rights.