1. Introduction
This article will examine the suitability of the test applied by our courts to determine whether an employer can be held liable for wrongful conduct by an employee even when unauthorised, on the basis of a “sufficiently close” link between the wrongful conduct and their employment.
2. Analysis
In 1999 the Canadian Supreme Court in Bazley v Curry [1999] 2 SCR 534 applied the “Salmond test” to determine the vicarious liability of a Foundation for acts of sexual abuse of vulnerable children by one of its employees – a legal framework visiting liability on an employer for both wrongful conduct authorised by an employer and unauthorised acts “so connected with authorised acts that they may be regarded as modes of doing authorised acts.” In other words, is there a significant link between the “creation or enhancement of the risk and the wrong that accrues therefrom?”
The South African High Court in Grobler v Naspers (2004) 25 ILJ 439 (C) then considered the development of the common law test for vicarious liability in other jurisdictions and its extension for policy reasons, and found that even if our courts were not inclined to extend its scope to cover sexual harassment in the workplace, section 173 of the Constitution afforded the courts the opportunity to adapt the test to give substance to the rights to dignity, freedom and security of the person, and to bodily and psychological integrity.
This constitutional principle was then argued before the Supreme Court of Appeal in K v Minister of Safety & Security 2005 (3) SA 179 (SCA), the appellant accepting that in terms of the common law the Minister could not be held vicariously liable for her rape by three police officers, since they were not acting “within the course and scope of their employment” at the time. The court declined to develop the common law to extend the liability of the state, however the Constitutional Court, applying section 39(2) of the Constitution, which required courts to “to promote the spirit, purport and objects of the Bill of Rights” when developing the common law, considered and developed the test for determination of liability set out in Minister of Police v Rabie 1986 (1) SA 117 (A) at 134 C – E:
“It seems clear that an act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or 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 is in this regard 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.”
The Constitutional Court formulated the test from Rabie as follows at para 32 into two clear questions:
- A factual question as to whether the wrongful conduct was purely for the employee’s own purpose; and
- Was there, objectively, a “sufficiently close link between the employee’s acts for his own interests and the purposes and the business of the employer?”
In this latter enquiry, the court is required to give effect to the “spirit, purport and objects of the Bill of Rights.”
Applying this test to the facts, the court then held the Minister liable on the basis that the police officers’ conduct in committing the rape, was closely aligned to an omission on their part to protect K – a duty which arose from their employment as police officers, and which informed K’s decision to trust them to assist her. This resulted in a “sufficiently close connection” between their wrongful conduct and their employment such that vicarious liability for their actions could be visited on the state.
The issue came before the Constitutional Court again in 2012, in F v Minister of Safety & Security & another (Institute for Security Studies, Institute for Accountability in Southern Africa Trust & Trustees of the Women’s Legal Centre as Amici Curiae) (2012) 33 ILJ 93 (CC) where the Minister tried to distinguish the matter on the facts from Kon the basis that the policeman here was off-duty. The court found that, whilst this was a factor to be considered, he had still used his police vehicle to commit the crime and was identifiable as a police officer even though he was not on duty. For these reasons, the court found that there had been a “sufficiently close connection” between his employment and the wrongful conduct.
This test was now entrenched as a significant development of the common law of vicarious liability away from the restrictive “course and scope of employment” test and to be applied in “deviation cases” to guide the courts in determining liability.
In Minister of Safety and Security v Morudu & others 2016 (1) SACR 68 (SCA) in the context of the murder of a breadwinner in front of his family by a policeman who believed that he was his wife’s lover, the court distinguished the matter from F and K on the facts. Applying the test, the court found that there was an insufficient link between his position as policeman and the crime he had committed – the family had not placed trust in him or turned to him for protection and he was acting solely for his own interests. In the circumstances, the court did not hold the state vicariously liable.
In a slightly different scenario, in PE v Ikwezi Municipality and Xola Vincent Jack [2016] ZAECGHC 20, the applicant sought to hold the municipality liable for sexual assault which had occurred in the workplace by a fellow superior employee. The court referred to the decision of the appeal court in Media 24 Ltd & another v Grobler 2005 (6) SA 328 (SCA) at para 65 where it referred to the “common law duty” owed by an employer to its employees to “take reasonable care for their safety”. Applying the test set out in F and K the court found that the superior had infringed her rights to dignity and bodily and psychological integrity by taking advantage of his position of authority over her, created by his employment status, as well as abused the position of trust. This created the “causal link” necessary to establish vicarious liability. Employer and superior were held jointly and severally liable.
The test of F and K was then developed further in Stallion Security (Pty) Ltd v Van Staden [2019]ZASCA 127. Having considered the common law in the context of the jurisprudence in the UK and Canada, the court at para 32 found it necessary “to recognise that the creation of risk of harm by an employer may, in an appropriate case, constitute a relevant consideration in giving rise to a sufficiently close link between the harm caused by the employee and the business of the employer.” An objective test should be applied to assess the issue. Applying this expanded test, the court found the employer liable for the acts of its security guard employee who murdered a member of the public.
An interesting issue then came to the fore in Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd [2023] ZACC 20 where the court was called upon to consider whether an employer could contract out of delictual liability for theft by employees by way of an exemption clause. The majority of the court relied on an interpretation of the clause to find that the employer was exempt. Both the minority and Prof Calitz[1] are of the view that public policy dictates that employers should not find protection in generously drafted exemption clauses.
3. Conclusion
“The two-stage enquiry for the imposition of vicarious liability in deviation cases first set out in Rabie and as developed in K and F is now an established legal test. Vicarious liability matters involve a careful consideration and weighing of the various factors set out in K and F to establish whether a sufficiently close link exists between an employee’s conduct and the business of an employer. K and F expressly refer to factors as opposed to requirements and the weight to be accorded to each factor must inevitably be determined on a case-by-case basis. This flexibility inherent in the test will naturally lead to different factors being accorded different weights by different courts, but it is this very flexibility that has imbued the common law of delict with the values of the Constitution.”
(Booysen v Minister of Safety & Security [2018] ZACC 18 at para 62)
The above quote succinctly summarises the balancing act required of the courts in considering the issue of vicarious liability. Based on this synopsis and for the following reasons, it is my view that the test does adequately balance the interests of employers with those harmed by the wrongful conduct of employees:
- The test is flexible, not rigid, and is applied on a case-by-case basis in the context of public policy considerations.
- Both constitutional and societal norms can be taken into account.
- Strict liability is mitigated by considering the extent of risk creation by the employer and its link to the employee’s wrongful conduct and this requires the courts to assess and balance the interests of both parties to determine whether the “sufficiently close connection” exists.
[1] The Exclusion of Vicarious Liability of Employers for the Intentional Unlawful Conduct of their Employees: Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd [2023] ZACC 20 (2023) 44 ILJ 2162.
Tel: +27 21 023 4262 Email: michelle.posemann@gbcape.co.za