It is common law practice in South Africa that an employer can be held vicariously liable for the negligent act of his or her employees. In general, the negligence act must have occurred during the course of their employment or performance of their duties. The question that arises is, to what extent can an employer be held liable and what are the possible consequences for the employer regarding vicarious liability?

 

In order to establish vicarious liability, the following three vital requirements must first be established:

  1. An employer/employee relationship must have already been established;
  2. A wrongful/illegal or negligent act must have been committed by an employee;
  3. The employee must have committed such wrongful/illegal or negligent act during the course or scope of his / her employment.

 

The common law requirements for vicarious liability were tested in NK v Minister of Safety and Security (2005) 26 ILJ 1205 (CC). In this case, Ms. N.K was left stranded in an open veld area without a lift. She noticed three police officers in full uniform, whom she approached who then offered her a lift home. The officers deviated from the route to her house. Ms. N.K was raped by the officers, who then left her stranded in an open veld. Despite the criminal charges laid against the officers, the question which arose was whether the Minister of Safety and Security could be held vicariously liable for the officer’s wrongful act.  In this case, the Constitutional Court articulated a general test applicable to all vicarious liability cases. Particular to this case, the Court established that there must be a close connection between the acts of the police officers and the duties of their employment based on the following factors;

  • the Minister and police officers as employees had a statutory and constitutional duty to protect the victim;
  • the police officers had a special duty to protect her especially because she trusted them due to the fact that they wore police uniforms;
  • the officers breached their statutory duty by way of a commission (the rape) and an omission (failing to protect her).

 

In this instance, the Constitutional Court took a view against the foundation of the Constitution. From the list of factors above, the court held that there was a suitably close connection to the employer, namely the Minister of Safety and Security to be held vicariously liable for damages.

 

In the most recent judgement of Stallion Security (Pty) Limited v Van Staden (2019) ZASCA 127 a unanimous decision resonated that considerations, for the purpose of determining the vicarious liability of an employer, must be further developed in our law. In this case Mr. Khumalo was appointed by Stallion security as a site supervisor in terms of a contract with Bidvest. Mr. Khumalo was provided with a bypass/override key for the Bidvest biometric system which allowed him access to the office area of the Bidvest building. One day, Mr. Khumalo gained access to an office area and forced a Bidvest employee, namely Mr. Van Staden to transfer funds into his personal account. Once the transfer was completed Mr. Khumalo shot and killed Mr. Van Staden. Mr. Van Staden’s wife claimed delictual damages against Stallion security in terms of vicarious liability. In determining the facts of this case, it was established that the conduct of Mr. Khumalo was completely self-motivated, as the funds were transferred directly into his personal account and could not be considered to be part of his duties as a security supervisor. The question before the court, however, was whether or not there was a sufficient link between the wrongful conduct of the employee, namely Mr Khumalo and the business of the company, namely Stallion.

 

The Supreme Court of Appeal had to determine whether the employer, in this case, had created the risk of harm that had materialised. The court went further to state that this risk must be tested objectively. Based on the facts of this case, the court ruled that Stallion had furnished Mr. Khumalo with more than the opportunity to commit wrongs. Stallion had allowed Mr. Khumalo to enter and exit office areas without detection and further stated that Stallion had provided Mr. Khumalo with significant knowledge of the security layout of the Bidvest building. As a result, and by virtue of Mr. Khumalo’s position, Stallion had given rise to a situation whereby Mr. Khumalo may abuse his powers. Considering this, the SCA held that Stallion Security was vicariously liable for Mr. Khumalo’s wrongful act and further confirmed that the Van Staden family was entitled to claim delictual damages from Stallion due to the vicarious liability.

 

Article by: Tammy Philpott

Dispute Resolution Official – Pretoria