What is Vicarious Liability?
Vicarious liability refers to a situation where an employer is held responsible for the actions or omissions of his employee. In the workplace, an employer maybe vicariously liable for the wrongful conduct of an employee if such wrongful conduct was committed by the employee in the course and scope of his or her employment. The rationale for this is that the employee is an extension of the employer. In other words, the employee is the instrument through which the employer acts for the employer’s gain.
Requirements for Vicarious Liability
The requirements for the vicarious liability of an employer are threefold:

  1. An Employment relationship– the person who committed the wrongful act must be an employee;
  2. A wrongful act must be committed;and
  3. The wrongful act must be committed in the course and scope of the employee’s employment with the employer.

As a general rule, if the wrongful act complained of occurred while the employee was on a frolic of his or her own, the employer will not be held viciously liable for the aforementioned act because it did not occur in the course and scope of the employee’s employment with their employer. There are exceptions to this general rule which will be explored in applicable case law below.
Applicable Case Law
The test to be applied in cases deviating from the above general rule was formulated in Minister of Police v Rabie 1986 (1) SA 117 (A) (“the Rabie case”). The test formulated in the Rabie case has both subjective and objective elements. In terms of the test formulated in the Rabie case, an employer may still be held liable even if the employee had abandoned the employer’s business and engaged in a frolic of his or her own, provided that there is a sufficiently close connection between the actions of the employee and the business of the employer.
In the Rabie case, the Plaintiff sued for damages caused in consequence of his wrongful arrest and assault. The police officer who made the arrest was an engineer in the employ of the police. At the time that he made the arrest complained of, he was off duty and in plain clothes. He introduced himself to the plaintiff as a police officer, took the plaintiff to the police station and wrongfully charged the plaintiff with housebreaking. The Judge, in combining the subjective and objective tests, found the Minister to be liable, notwithstanding that the policeman was off duty and acting outside the scope of his employment with the Minister at the time of the incident.
In Minister of Safety and Security v Morudu, Navsa ADP (as he then was) reasoned as follows in applying the test formulated in the Rabie case:
“Utilizing the test in Rabie as a basis, the Constitutional Court formulated the test for determining vicarious liability in deviation cases as follows (Para 32):
“The approach makes it clear that there are two questions to be asked. The first is whether the wrongful acts were done solely for the purposes of the employee. This question requires a subjective consideration of the employee’s state of mind and purely factual question. Even if it is answered in the affirmative, however, the employer may nevertheless be liable vicariously if the second question, an objective one, is answered affirmatively. That question is whether, even though the acts have been done solely for the purpose of the employee, there is nevertheless a sufficiently close link between the employee’s acts for his own interest and purposes and the business of the employer. This question does not raise factual questions but mixed questions of fact and law. The question of law it raises relates to what is sufficiently close to give rise to vicarious liability. It is in answering this question that the court should consider the need to give effect to the spirit, purport and objects of the Bill of Rights.”
In the above case an employee, Mr Duba, was employed by the Minister of Safety and Security as a fingerprint expert, whose duties included, inter alia, uplifting fingerprints from various crime scenes. Mr. Duba suspected that his wife was having an extra marital affair with Mr Morudu, the deceased. Mr Duba drove to the deceased’s home. Mr Duba asked about the whereabouts of Mrs Duba, his wife. Shortly thereafter, he pursued Mr Morudu through the house and ultimately shot and killed him. At the time of the incident, Mr Duba was traveling in an unmarked police vehicle and was dressed in civilian clothing. Further, he used his private firearm to commit the crime.
The court of first instance held that the Minister was liable for the wrongful conduct of Mr Duba. It is against this background that the matter went on appeal. On appeal, the Minister maintained that Mr Duba had not been acting in the course and scope of his employment as a fingerprint investigator and consequently, the Minister was not liable. The Supreme Court of Appeal held that the division to which Mr Duba was assigned was not a division of the police services to which the public would intuitively turn for protection. Further, the Respondents had not known that Mr Duba was a police officer. As mentioned above, at the time of the incident Mr Duba was driving an unmarked vehicle and was dressed in civilian clothing. Hence, no trust was placed in him as a police officer by the Respondents.
The court in this case applied the Rabie test for vicarious liability. It held that Mr Duba went on a frolic of his own and that there was no close connection between the aforesaid frolic and the business of the Appellant. The Supreme Court of Appeal absolved the Minister of Safety and Security from liability because the connection between Mr Duba’s actions at the time of the incident and the business of the Appellant was too remote.
The principles shown in these cases are that an employer can be held vicariously liable for the actions of an employee, acting in his course and scope of his employment. However, in cases where the employee acts contrary to the instruction of the employer and the employee’s actions bear no similarity to the instruction, then liability will not be imputed to the employer due to the remoteness of the connection.
In conclusion, the lesson to be drawn is that each case must be judged on its own merits, carefully analyzing the facts and applying the principles of law.
Author: Thina Makaula

  • Minister of Police v Rabie 1986 1 SA 117 (A)
  • In Minister of Safety and Security v Morudu and Others 2016 (1) SACR 68 (SCA).