By: Nick Hardie, LindsayKeller associate
The development of the law to give a wider scope to vicarious liability means that an employer may be liable where their employees are engaged in their own activities.
Generally, an employer is vicariously liable for the wrongful acts or omissions committed by their employees during the course and within the scope of their employment. This faultless liability of an employer originates in Roman law and is founded on the principles of public policy.
However, there has been a development of the law to encompass vicarious liability in other circumstances. Judge Mogoeng explained this development in F v Minister of Safety and Security 2012 (1) SA 536 (CC):
Two tests apply to the determination of vicarious liability. One applies when an employee commits the deed while going about his employer’s business. This is generally regarded as the “standard test”. The other test finds application where wrongdoing takes place outside the course and scope of employment. These are known as “deviation cases”.
The deviation cases are where the law has extended the scope of vicarious liability. The reasoning behind this extension was explained by Chief Justice Watermeyer in his judgment in Feldman (Pty) Ltd v Mall 1945 AD 733:
a master who does his work by the hand of a servant creates a risk of harm to others if a servant should prove to be negligent or ineffective or untrustworthy; that, because he has created this risk for his own ends he is under a duty to ensure that no one is injured by the servant’s improper conduct or negligence in carrying on his work…
Acting Judge Jansen formulated a test for determining these “deviation matters” in Minister of Police v Rabie 2986 (1) SA 117 (A):
an act done by a servant solely for his own interest and purposes, although occasioned by his employment, may fall outside the course and scope of his employment, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant’s intention. The test in this regard is subjective. On the other hand, if there is nevertheless a sufficiently close link between the servant’s acts for his own interests and purposes and the business of his master, the master may yet be liable. This is an objective test.
Accordingly, there are two tests that need to be applied to impute extended vicarious liability on an employer. Firstly, the subjective intention of the employee and, secondly, the objective “sufficiently close link” test. In order to evaluate this “sufficiently close link”, the court must consider whether the employer created the risk of harm that occurred.
In Stallion Security v Van Staden (2019) ZASCA 127, Stallion Security undertook to provide 24-hour security services that were intended to protect Bidvest staff and property. Stallion Security placed an employee (Mr Khumalo) in charge of discharging this contractual duty by providing him with an override key which allowed him to gain access to various Bidvest buildings without the use of the biometric system and without a record of such entry. Mr Khumalo was responsible for monitoring and managing security personnel and operations at several Bidvest premises. It was held that this uncontrolled access provided by Stallion Security was a sufficiently close link to determine that Stallion Security created the risk of harm that became an eventuality, namely the murder of the respondent’s husband after his kidnapping from one of the Bidvest buildings.
In Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd (2020) ZAGPJHC 111, the Johannesburg High Court dealt with a deviation case of vicarious liability. The court found that an employer was vicariously liable for theft of goods that had been committed by an employee solely for his own purpose and not while carrying out his duties. There was however a “sufficiently close link” between the theft and the lawful business which the employee carried out on behalf of his employer.
This development of common law to accommodate deviation cases is in line with developments in international law, with the Canadian Supreme Court and the House of Lords giving similar judgments to those given in the cases discussed in this article. These cases have firmly established that the creation of a risk that becomes an eventuality is an important consideration in determining the vicarious liability of an employer under the “close connection” test.
There needs to be a factual assessment of the subjective intention of the perpetrator of the delict and whether the delict committed is “sufficiently connected to the business of the employer”. The courts have made it clear that a mere opportunity for the employee to commit a wrong does not constitute a sufficiently close link. Accordingly, a mere ‘but for’ causation is not sufficient to assign vicarious liability to an employer. This is a purely factual question that considers whether the harm caused would have occurred if the employee’s conduct did not take place. If it would have occurred in any event, the employee’s actions are not the cause of the harm.