As a point of departure, the doctrine of vicarious liability means that the employer is held liable for the wrongful acts or omission of its employees. The difficult issue which one needs to examine when dealing with these sorts of cases is to establish whether the wrongful act arose in the course of the employee’s duties.
The Supreme Court of Appeal (SCA) in Stallion Security (Pty) Limited v Van Staden (“Stallion Security”) was given the task to revisit the test to use when establishing whether the wrongful act committed is “sufficiently connected to the business of the employer” in order to render the employer liable.
In short, the appeal before the SCA was against the order of the Gauteng Division of the High Court, Pretoria, which found Stallion Security vicariously liable to Mrs van Staden for loss of support. This was due to an employee of Stallion Security, acting for his own interest and purpose, murdered Mrs van Staden’s husband.
Stallion Security concluded a contract with Bidvest in terms of which the Appellant’s contractual obligation was to provide access control at the premises secured by the Appellant, one of which was at Bidvest’s head office. Mr Khumalo (“Khumalo”) was employed as the Appellant’s site manager at the Bidvest head office to conduct regular inspections of the other security guards who were on duty, this included after-hour visits to Bidvest’s premises. In order to perform his duties at Bidvest’s head office, Khumalo was given an override key to gain access to the offices, which no other security guard had access to. Khumalo was also registered on Bidvest’s biometric system.
According to a statement Khumalo gave to the police, he stated that he was under pressure to pay back a loan to certain persons who had “started hurting” him. Knowing that Bidvest kept a petty cash box at its head office, on 3 November 2014, Khumalo arrived at the head office, waited for the staff to leave knowing that Mr van Staden worked late, entered the building via an emergency door and using his override key, gained access to the office area. At gunpoint Khumalo demanded that Mr van Staden should open the safe. Mr van Staden informed Khumalo that he did not have keys to the safe but could transfer R 35 000 from his personal account to Khumalo’s account.
Khumalo ordered Mr van Staden to drive to a nearby shopping mall, however, before reaching the mall and on realising that van Staden could call the police, Khumalo shot and killed Mr van Staden.
In formulating the test to determine whether an act of an employee, done solely for their own interest and purpose, although occasioned by their employment, triggers vicarious liability of the employer. The Court in Minister of Police v Rabie 1986 (1) SA 117 (A) held that reference must first be had to the subjective intentions of the employee. Secondly and adjudged objectively, whether there is nevertheless a sufficiently close link between the employee’s self-serving act and the business of the employer – if so, the employer may well be held liable. This approach was endorsed and expanded on by the Constitutional Court in K v Minister of Safety and Security 2005 (6) SA 419 (CC).
The other factors the court took into account were, whether liability should lie against the employer, rather than concealing the decision surrounding “scope of employment” and “mode of conduct”; whether the wrongful act is sufficiently related to the conduct authorised by the employer in order to justify the employer’s vicarious liability (whether a connection exists between the creation or enhancement of a risk and the wrong that stems from the conduct); the opportunity that the employer afforded the employee to abuse his/her power; the extent to which the wrongful act may have furthered employer’s aims; the extent to which wrongful act was related to friction/confrontation/intimacy inherent in the employer’s enterprise; the extent of power conferred on the employee in relation to victim; and the vulnerability of potential victims due to an employee’s wrongful exercise of his/her power.
After considering the aforesaid factors and evaluating the facts of the case, the SCA came to the conclusion that Khumalo’s wrongful act was solely for his own purposes. Furthermore, the fact that Khumalo being on sick leave and not committing the murder at his workplace, diminished the link between the Appellant and the murder. However, the SCA found that Stallion Security furnished Khumalo with much more than a mere opportunity to commit the wrongs in question. The Court held “It enabled him to enter into and exit from the office area without detection or concern on the part of Bidvest. He was so enabled by the intimate knowledge of the layout and the security services at the premises; the instruction to make unannounced visits to the premises at any time; the knowledge that the deceased would be working late; and, most importantly, the possession of the override key to the office area. This special position created a material risk that Mr Khumalo might abuse his powers. This risk rendered the deceased vulnerable and produced the robbery and consequently the murder.”
Accordingly, the Court acknowledged that there was a link between Khumalo’s employment and the wrongful act.
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