Employment law update – Employer held vicariously liable for the murder committed by its employee

December 1st, 2019
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Stallion Security (Pty) Ltd v Van Staden (SCA) (unreported case no 526/2018, 27-9-2019) (Van de Merwe JA (Leach, Mbha and Dambuza JJA and Hughes AJA concurring)).

The appeal before the Supreme Court of Appeal (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, after Stallion Security’s employee, acting for his own interest and purpose, murdered van Staden’s husband.

Stallion Security was contracted by Bidvest Panalpina Logistics to provide security for three of its sites, including its head office. Khumalo, employed by Stallion Security, was the site manager for the Bidvest contract and part of his duties entailed performing spot checks at each site, inspecting the interior of the buildings and ensuring emergency exit doors were locked. In order to perform his duties at Bidvest 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 to police, Khumalo said he was under pressure to pay back a loan to certain persons who had ‘started hurting’ him. On the understanding 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 van Staden worked late, entered the building via an emergency door and using his override key, gained access to the office area. At gun point Khumalo demanded that van Staden open the safe. 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. It appeared that van Staden made the transfer after which Khumalo forced van Staden to open a door of the office area and then exit through another emergency exit door, escorted van Staden to the latter’s car with his gun pinned against van Staden’s back.

Khumalo ordered van Staden 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 van Staden. Khumalo was later apprehended, managed to escape from custody but has since, through certain information, been presumed dead.

The sole issue before the SCA was whether Stallion Security could be held vicariously liable for the self-serving interest of its employee.

The court noted that unlike other instances where the application of vicarious liability was straight forward, ‘[d]ifficulties arise when the employee commits an intentional wrong entirely for their own purpose’.

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).

What factors would a court consider to determine whether there is a sufficiently close link between the independent act of the employee and the enterprise or business of the employer?

In addressing this question the SCA held that such a link would not be established on the mere basis that the business of the employer provided the employee an opportunity to commit the wrong. Put otherwise, the test needs to be more stringent and cannot simply implore the ‘but for’ test.

Having examined international and local jurisprudence on whether, as a criterion to determine if a sufficiently close link existed between the act of the employee and the business of the employer a court could examine whether the employer created the risk of harm which the employee acted on, the SCA held:

‘[O]ur law as developed in Rabie and K, should be further developed to recognise that the creation of risk of harm by an employer may, in an appropriate case, constitute a relevant consideration in giving rise to a sufficiently close link between the harm caused by the employee and the business of the employer. Whether the employer had created the risk of the harm that materialised, must be determined objectively.’

Applying the criterion to the facts, the court held:

‘Stallion [Security] furnished Mr Khumalo with much more than a mere opportunity to commit the wrongs in question. 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.’

While acknowledging that the matter before it was not free of difficulty, the SCA held that the court a quo had not erred in establishing a sufficiently close link between the business of Stallion Security and the murder committed by its employee, Khumalo. The appeal was dismissed with costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2019 (Dec) DR 35.