This post was contributed by Sipelelo Litji, Lauren Coetzee and Kate Paterson

Employers may be vicariously liable for an employee’s actions regardless of whether they are acting in the course and scope of their employment.

This is according to a Supreme Court of Appeal judgment that found the Minister of Defence to be liable for an ex-soldier who provided stolen Defence Force weaponry that was ultimately used in an armed robbery.  One civilian was seriously injured and another died during the armed robbery.

The judgment upheld a Gauteng High Court decision that chose not to apply the standard test for vicarious liability, but to develop the test in accordance with the spirit, purpose and objects of the Constitution.  The reason for this extension appears to be that the standard test would not have given the plaintiff in the matter a fair remedy.

In the standard test, an employer will be vicariously liable where:

  • A delict was committed by an employee; and
  • The employee was acting in the course and scope of his employment.

An employee, therefore, must not be deviating from their employment duties to pursue their own interests, and there must be a link between the employee’s conduct and the business of the employer.

Not anymore …  In this matter, the perpetrator was no longer employed by the Defence Force and was clearly not acting in the course and scope of his duties.  However, the weapon used in the robbery was assembled from parts of R4 rifles stolen from the Defence Force with the help of another ex-soldier.

The link between the employer and the delict, according to the Court, arises from the actions of the second soldier.  This is because in the course of his employment he was able to procure R4 parts for the perpetrator, knowing the likelihood of them being used to commit a crime.  Though this was not found to be connected to the business of the employer, it was sufficient to hold the employer liable.

In order to escape the liability, the Minister of Defence had to show that all possible reasonable steps were taken to prevent weapons from being stolen.  Though this is quite a severe approach, the Court distinguished the circumstances of this case from cases involving civilian employers, saying that the Defence Force in particular should not so easily escape liability for actions of its employees that put the public at risk.  In fact, the Defence Force was said to have a duty to teach its employees to minimise the risk of dangerous weapons escaping into the hands of the public.

It’s clear, therefore, that the courts are willing to stretch the principles of vicarious liability.  Both public and private employers, therefore, should consider extending their insurance cover to provide for this risk, or, alternatively, should insist on indemnities when engaging their suppliers and service providers.

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