Written by Roy Bregman, an admitted attorney with over 51
years' experience in employment law and civil litigation.
Last updated: 4 July 2026 | Bregman Moodley Attorneys,
Johannesburg
|
Key Takeaways • Your
business can be held liable for harm caused by an employee, even if you did
nothing wrong yourself and even if the employee's conduct was forbidden or
criminal. • Courts now
ask whether there is a sufficiently close link between the employee's
wrongful act and your business, including whether your business created or
increased the risk of the harm. • Recent
judgments, including Stallion Security and Fujitsu v Schenker,
confirm that liability can extend to murder and theft committed by employees
purely for their own gain. • Careful
hiring, sensible limits on employee powers, well-drafted contracts and
adequate insurance are an employer's best protection. |
What does vicarious
liability mean in South African law?
Vicarious
liability means that an employer is held legally responsible for a civil wrong
committed by an employee, even though the employer itself did nothing wrong.
Lawyers call this civil wrong a delict, which is simply an act, whether
negligent or deliberate, that unlawfully causes harm or financial loss to
someone else. It is a form of strict liability, sometimes described as
no-fault liability, because the injured person does not have to prove that the
employer was careless in any way.
Why does our
law do this? The reasoning is practical and fair. The employer profits from the
employee's work, so it should also carry the risks that go with that work. The
employer is usually in a better financial position to compensate the victim,
and it can spread that cost through insurance or pricing. For business owners,
this is not an academic idea. It is a real financial risk that has grown
steadily as our courts have widened the doctrine.
What must be proved before
an employer is held liable?
A person
claiming against an employer must prove three things: a true employment
relationship, a wrongful act by the employee, and a sufficient connection
between that act and the employee's job.
1. A true employment
relationship
The wrongdoer
must be an employee, not an independent contractor. Courts look at the
substance of the relationship, not the label on the contract, using what is
known as the dominant impression test. Key factors include the
employer's right to control how the work is done, who provides the tools and
equipment, and how integrated the person is into the business.
2. A wrongful act by the
employee
The employee
must have committed a delict. Their conduct must have been unlawful, committed
with fault (either deliberately or negligently), and it must have caused harm
or loss to someone. If the employee is not liable, the employer cannot be
liable either.
3. The act happened within
the course and scope of employment
This is the
battleground in most cases. The classic example is easy: a delivery driver who
negligently causes an accident while making a delivery is clearly doing his
job, and his employer is liable. The hard cases arise where the employee strays
from his duties.
Is an employer liable if
the employee was pursuing his own interests?
Often, yes. The
law traditionally distinguished between a detour and a frolic. A
detour is a minor deviation, for example a driver who takes a slightly longer
route to stop at a shop. The employer usually remains liable. A frolic is a
complete abandonment of the employer's business, for example a driver who
leaves his route entirely to visit a friend across town. Traditionally, the
employer was not liable for a frolic.
That neat
distinction broke down when employees committed deliberate crimes, such as
assault, rape or theft, which served no possible business purpose. Our highest
courts responded by developing a more flexible test.
How have the courts
expanded employer liability? The close connection test
The modern test
asks whether there is a sufficiently close link between the employee's
wrongful act and the employer's business. It works in two stages. First, the
court asks whether the employee acted purely for his own purposes (a factual
question about his state of mind). If he did, the court then asks an objective
question: is the act nonetheless closely enough connected to the business to
make it fair to hold the employer liable? A crucial factor is whether the
employer created or increased the risk of the very harm that occurred,
for example by giving the employee authority, access, a uniform or trust that
he then abused. The leading cases show how far this reaches.
K v Minister of Safety and Security
[2005] ZACC 8
A young woman,
stranded late at night, accepted a lift home from three uniformed, on-duty
policemen. They raped her. The Constitutional Court held the Minister
vicariously liable. Although the policemen acted entirely for their own
purposes, they were simultaneously failing in their duty to protect her, and
she had trusted them precisely because they were police. The connection between
their crime and their employment was sufficiently close.
F v Minister of Safety and Security
[2011] ZACC 37
A 13-year-old
girl was raped by a policeman who was on standby duty, out of uniform and
driving an unmarked police vehicle. The Constitutional Court still held the
State liable. The girl had identified him as a policeman from the police radio
and dockets in the car and trusted him for that reason. His employment gave him
the means and the trust that made the crime possible.
Stallion Security (Pty) Ltd v Van Staden
[2019] ZASCA 127
Stallion's site
manager at a client's premises used his position, his security clearances and
an override key to enter the client's offices after hours. He robbed the
client's financial manager at gunpoint, forced him to transfer R35 000, and
then murdered him. The crime was committed entirely for the manager's own gain,
yet the Supreme Court of Appeal held Stallion liable. The court formally
developed our law to recognise that an employer's creation of risk is a
relevant consideration. Stallion had given its employee far more than a mere
opportunity: it gave him unsupervised access and control over the very premises
it was paid to protect.
Schenker v Fujitsu [2022] ZASCA 7 and Fujitsu v Schenker [2023] ZACC 20
A clearing
clerk employed by the logistics company Schenker used his employer-issued
security clearance and paperwork to collect a consignment of Fujitsu laptops
worth over R9 million from an airport cargo warehouse, and stole them. It was
accepted in the litigation that Schenker was vicariously liable for the theft.
Schenker nevertheless escaped payment because its contract with Fujitsu
contained an exemption clause: valuable goods had to be declared under special
written arrangements, and Fujitsu had made none. In 2023 the majority of the
Constitutional Court upheld that clause and dismissed Fujitsu's claim. The
lesson cuts both ways: vicarious liability reaches even calculated theft by an
employee, but a carefully drafted contract can lawfully limit the fallout.
Which test applies when? A
quick comparison
|
Situation |
Test the court applies |
Typical outcome |
|
Employee doing his job
negligently |
Standard test: was he acting in
the course and scope of his employment? |
Employer almost always liable. |
|
Minor personal deviation (detour) |
Standard test, applied generously. |
Employer usually still liable. |
|
Deliberate wrong for the
employee's own purposes |
Close connection test: is the act
sufficiently linked to the business, including risk created by the employer? |
Employer liable where its
business created or increased the risk (uniform, keys, authority, trust). |
|
Business merely gave the opportunity |
Close connection test, strictly applied. |
Mere opportunity is not enough; employer generally
not liable. |
What practical steps
should employers take?
Employers
cannot contract out of the doctrine itself, but they can dramatically reduce
both the risk of an incident and the financial consequences. We recommend the
following steps:
1.
Vet before you hire. Verify
qualifications, references and, where lawful, criminal records, especially for
positions involving trust, authority, keys, firearms or access to vulnerable
people.
2.
Limit powers to what the job
requires. Master keys, security clearances, firearms and financial
authority should be given sparingly, recorded, and reviewed regularly. The more
power you confer, the more risk you create.
3.
Put clear written policies in
place. Codes of conduct, anti-harassment policies and job descriptions
matter, but remember that forbidding an act does not, on its own, protect you
if the act is closely linked to the employee's duties.
4.
Train and supervise. Training
must be real, not a tick-box exercise, and supervision must match the risk
profile of the role, particularly for employees working alone, off-site or
after hours.
5.
Review your contracts. The Fujitsu
case shows that well-drafted exemption and limitation clauses in your terms of
business can lawfully limit your exposure. Have them professionally drafted and
reviewed.
6.
Check your insurance. Make
sure your public liability and fidelity cover extends to deliberate and
criminal acts by employees and read the exclusions carefully.
7.
Remember your right of
recourse. An employer held vicariously liable may claim the money back from
the guilty employee, although in practice the employee often cannot pay.
Conclusion: what does this
mean for your business?
South African
courts have decisively moved towards holding employers accountable not only for
what they authorise, but for the risks their business creates. You can no
longer assume that a criminal act by an employee is automatically "his
problem". If your business gave him the uniform, the keys, the authority
or the trust that made the wrong possible, you may well be paying for it. The
good news is that the risk is manageable, through diligent hiring, sensible
limits on power, sound contracts and proper insurance. That is where timely
legal advice earns its keep.
Frequently asked questions
about vicarious liability
Can my business be liable
even if I forbade the employee's conduct?
Yes. A
prohibition in a policy or contract is a relevant factor, but it is not
decisive. If the forbidden act is closely connected to the duties, powers or
access you gave the employee, a South African court can still hold your
business vicariously liable for the harm caused.
Is an employer liable for
crimes committed by an employee, such as theft or assault?
It can be. In
Stallion Security the employer was held liable for a murder, and in Fujitsu v
Schenker vicarious liability for an employee's theft of laptops was accepted.
The question is whether the employment created or increased the risk of the
crime, not whether the employer approved of it.
Is a business liable for
the actions of an independent contractor?
Generally, no.
Vicarious liability requires a true employment relationship. Courts apply the
dominant impression test, looking at control, tools and integration into the
business, rather than the label used in the contract. A business can, however,
be directly liable for its own negligence in selecting or supervising a
contractor.
Can an employer claim the
money back from the employee?
Yes. An
employer that has been held vicariously liable has a common law right of
recourse against the employee who committed the wrong. In practice this right
is often of limited value because the employee cannot afford to pay, which is
why insurance remains essential for employers.
Can a contract exclude
liability for an employee's wrongdoing?
Sometimes. In
Fujitsu v Schenker (2023) the Constitutional Court enforced an exemption clause
that protected the employer from a claim arising from its employee's theft,
because the customer had not made the required special arrangements for
valuable goods. Clear, professionally drafted clauses can lawfully limit
exposure between contracting parties.
Speak to an attorney
before the risk becomes a claim
Whether you are
an employer wanting to close the gaps, or you have suffered loss at the hands
of someone else's employee, we can help. Bregman Moodley Attorneys has advised
Johannesburg businesses and families for over 50 years, and a director
personally handles your matter and returns your call promptly.
Call us on +27 (0)11 646 0335, email roy@bmalaw.co.za or visit bregmans.co.za to arrange a consultation.
