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April 15, 2021
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May 12, 2021

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 to establish when dealing with these cases is whether or not 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 of revisiting the test for establishing if a wrongful act committed by an employee 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 in his own interest and purpose, murdering Mrs van Staden’s husband.

The Incident:

Stallion Security (“the Appellant”) concluded a contract with Bidvest where the Appellant’s contractual obligation was to provide access control at the premises secured by the Appellant, one of which was 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. 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 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.

Holding Mr van Staden at gunpoint, Khumalo demanded that Mr van Staden 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 for whether an act of an employee, done solely for their own interest and purpose but 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 as to the subjective intentions of the employee. Secondly and adjudged objectively, whether there is a sufficiently close link between the employee’s self-serving act and the business of the employer – if so, the employer could 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 the following:

  • Whether liability should lie against the employer, rather than concealing the decision surrounding “scope of employment” and “mode of conduct”;
  • Whether the wrongful act was sufficiently related to the conduct authorized by the employer 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;

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 was 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 and upheld that Stallion Security was vicariously liable.

Reference list:

  • Stallion Security (Pty) Limited v Van Staden (526/2018) [2019] ZASCA 127
  • AC Basson, MA Christianson, A Dekker, C Garbers, PAK Le Roux, C Mischke & EML Strydom Essential Labour   Law 5 ed (2009).
  • Employment law update – Employer held vicariously liable for the murder committed by its employee. De Rebus in 2019 (Dec) DR 35

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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