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The concept of vicarious liability is an established principle in our law, it is important for parties engaged in litigation where vicarious liability is pleaded to be wary of what must be proven, or the defences that may be available. In this article we discuss the principles around vicarious liability from a litigation perspective.

As a point of departure, we shall define the concept of vicarious liability for the benefit of those who might not be familiar with what it is all about. In simple terms, vicarious liability is whereby someone is held accountable for the actions of another.

To explain the immediately above by way of an example, an employer may be held liable for delicts committed by employees in the course and scope of their employment. In the case of Loureiro And Others v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) the Court held that the Respondent was liable for the actions of its employee, who had been negligent resulting in robbers gaining access into the property of the Applicant.

Apart from proving the loss / damages, the claimant must also prove that vicarious liability is applicable. What must be proven for vicarious liability to be applicable in the context of employment?

Firstly, it must be proven that the delict was committed and secondly, that the person who committed the delict is/was an employee of the Defendant at the time it was committed. The second requirement was confirmed in the cases of Smit v Workmen's Compensation Commissioner (1979) 1 SA 51 (A) and Gibbins v Williams, Muller, Wright And Mostert Ingelyf (1987) 2 SA 82 (T).  

Thirdly, the claimant must prove that the delict was committed in the course and scope of such employment. Consequently, it follows that an employer cannot be held accountable for delictual actions of employees who were not acting in the course and scope of their employment.

What does it mean ‘in the course and scope of employment?’

Perhaps we can explain this in supposed terms. Where an employee takes an action in defiance of the employer’s instructions (Bezuidenhout v Eskom 2003 3 SA 83 (SCA), or engages in something which is not incidental to their employment duties nor in furtherance of the employer’s interests, in these circumstances it may not be concluded that the employee acted within the ‘course and scope’ of their employment and therefore vicarious liability will not be applicable.

It is not enough however, to allege that the employee who committed the delict did so while on duty and therefore the employer must be held accountable, as was held in Minister of Police v Mbilini (1983) 2 All SA 282 (A). As alluded to above, it may well be that the delictual action of the employee was not incidental to their employment duties nor in furtherance of the employer’s interests, despite the fact that they were on duty.

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