Vicarious liability of employer for employee’s frolic: More clarity on detour cases

October 24th, 2016
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Minister of Safety and Security v Morudu and Others 2016 (1) SACR 68 (SCA)

By Siyabonga Sibisi

It is trite in law that an employer is vicariously liable for the wrongful conduct of an employee if such wrong was committed by the employee in the course and scope of his or her employment or while engaged in any activity incidental thereto. The rationale for this is because the employee is an extension of the employer – the instrument with which the latter acts. I submit that by deciding to employ, the employer creates a ‘risk of harm’, which in turn imposes an obligation on him or her to safeguard others against materialisation of the harm. The difficulty arises when an employee does something outside the course and scope of his or her employment. In this case, can the employer be held liable?

In Minister of Safety and Security v Morudu and Others 2016 (1) SACR 68 (SCA) the Supreme Court of Appeal (SCA) seized the opportunity to reiterate the legal position.

Facts

On 25 December 2001, Inspector Frans Duba (Duba), employed by the appellant as a fingerprint investigator, drove to the home of the respondents. On arrival he called out Mr Morudu (the deceased husband of the first respondent). Duba demanded to know the whereabouts of his wife (Mrs Duba). He was convinced that Mr Morudu was having an affair with his wife. He then pursued, shot and killed Mr Morudu . It was common cause that Duba had driven in an unmarked police vehicle, dressed in civilian clothing and, therefore, it was unknown to the respondents that he was a police officer. He used his private firearm to commit the unlawful deed. His duty was to report to the crime scene – only when called on to do so –to lift fingerprints.

The court a quo held that the minister was liable for the wrongful conduct of Duba. It is against this that the matter went to the SCA.

Issue

On appeal the minister maintained that Duba had not been acting in the course and scope of his employment as a fingerprint investigator and consequently the minister was not liable. The respondents maintained that Duba was an employee of the respondent, even if he had not been acting in the course and scope of his employment, there was a sufficiently close link between the business of the appellant and the conduct of Duba.

An overview of the law of vicarious liability

The doctrine of vicarious liability is rooted in public policy. It is based on the belief that because the employer works through the employee, there is a potential risk of harm created by the employer should the employee be ‘negligent, ineffective or untrustworthy’ (A Smith ‘When can you blame the boss for the worker’s misconduct?’ (2001) 9 JBL 81 at 82; see generally Feldman (Pty) Ltd v Mall 1945 AD 733). This is the creation of risk theory. The maxim qui facit per alium facit per se (he who acts through another (is considered) to act himself) is the gateway for vicarious liability (BE Loots ‘Sexual harassment and vicarious liability: A warning to political parties’ (2008) 19 SLR 143 at 145). This necessitates a distinction between wrongful acts or omission of an employee committed within the course and scope of employment, the traditional vicarious liability cases, and wrongful acts or omissions committed by an employee outside the course and scope of employment, the deviation or detour cases (Morudu (op cit) at para 18).

The question of liability of the employer in the former case (traditional vicarious liability cases) does not pose difficult; the problem arises with the latter cases (deviation vicarious liability cases); the latter necessitates an extension of the concept ‘course and scope of … employment’ (K v Minister of Safety and Security 2005 (6) SA 419 (CC) at 425F). In each set of cases the courts apply a suitable test.

The meaning of course and scope of employment

The concept ‘course and scope of employment’ carries a wide interpretation. It has been understood to refer to acts authorised by the employer. It has also been held that it includes the so-called ‘abandonment-mismanagement rule’ cases where the employee partially completes the work of the employer while devoting his attention to his frolic. In this case the employer will be held liable (S Wagener ‘The abandonment-mismanagement rule: Vicarious liability for an employee’s simultaneous commission and omission’ (2015) 132 SALJ 270 at 272).

Tests used for vicarious liability

There are three common law requirements in standards cases names (Loots (op cit) at 149):

  • A master-servant/employer-employee relationship must be established.
  • A wrongful act must be done by an employee.
  • The employee must have committed the wrongful act while acting within the course and scope of his employment.

These common law requirements were redundant when it came to deviation cases. An employer could easily get away simply because the employee had abandoned the employer’s business and engaged on a frolic of his or her own. A rigid application of these requirements excluded many cases with legitimate claims. A proper test to apply to deviation cases was formulated in Minister of Police v Rabie 1986 (1) SA 117 (A). In terms of this test an employer may still be held liable even if the employer had abandoned the employer’s business and engaged on a frolic of his or her own provided that there is a ‘sufficiently close connection’ between the actions of the employee and the business of the employer.

The test has subjective and objective elements. The subjective elements implore into the intentions of the employee – whose interests was he or she furthering? In K (op cit) O’Regan J stated that this requires a consideration of the employee’s state of mind and is a purely factual inquiry (at 436C). Once it is established that the employee was on a frolic of his or her own, the employer may nonetheless still be held liable if there is a sufficiently close link between the conduct of the employee and the business of the employer. This is the position no matter how ‘badly or dishonestly or negligently’ the employee conducted himself (K (op cit) at 425H). This is an objective element which involves a mixture of law and facts (K (op cit) at 436E).

This test for deviation cases was employed by the Constitutional Court (CC) in the K case. The court criticised the various differing applications of the test resulting in legal uncertainty. Further, it developed the test by making it compatible with constitutional values. The court held that the objective element of the test is flexible and incorporates constitutional norms, as well as other norms, insofar as deciding what is sufficiently close for the purposes of vicarious liability (K (op cit) at 441H). However, this approach by the CC has been criticised. Wagener is of the view that there is an increasingly blurring distinction between personal and vicarious liability (S Wagener ‘K v Minister of Safety and Security and the increasingly blurred line between personal and vicarious liability’ (2008) 125 SALJ 673). Wagener ((op cit) at 674) is of the view that the court in K misdirected itself on three aspects, namely –

  • overemphasis of legal duties as a basis for liability;
  • erroneous reliance on s 39 (2) of the Constitution and the Bill of Rights as a basis for developing the concept ‘course and scope of employment’; and
  • the court followed a blurred English decision.

Wagener also made some notable observations about the K case such as that the court’s reasoning was influenced by the ‘nature of the interest infringed’. He shared the view that had a lesser interest been infringed, for example, damage to a motor vehicle, the court would not have come to a similar conclusion (Wagener (op cit) at 676 – 677). He concluded, with authority, that the court’s approach is questionable and unsustainable and as such the courts ought to apply an ‘extraordinary’ form of personal liability (Wagener (op cit) at 678). Of interest is that the extent of this ‘extraordinary’ form of personal liability is unknown. Be it as it may, I acknowledge the views raised by Wagener, they are not yet a cause for concerns in light of Morudu.

The decision of the court

The court in arriving at a decision in Morudu case distinguished the present case from other cases. In F v Minister of Safety and Security and Others 2012 (1) SA 536 (CC) a police officer on stand-by had raped and assaulted the appellant while using an unmarked police vehicle. The appellant had seen a police radio and later a docket in the vehicle, which led her to trust that she was safe and jumped in the vehicle. In K (op cit) three on duty police officers had carried the appellant in a police vehicle in contravention of standing orders not to transport unauthorised passengers. They further raped and threw her out of the vehicle.

In the Morudu case, the employee was employed in a fingerprint unit. In the court’s reasoning, ‘[T]he unit was not a division of the police to which the public will intuitively turn for protection’ (Morudu at para 35); different from the F and K matters. Further, in the Morudu case, the respondents had not known that Duba was a police officer. He had used an unmarked vehicle and dressed in civilian clothing. Hence no trust was posed to him by the respondents (Morudu at para 34).

The court applied the test. It was agreed that the employee had furthered his own interests, however, there was no sufficiently close link between the conduct of Duba (who was employed in the fingerprint unit) and the business of the employer. Mr Duba had been on a frolic of his own as he believed that the deceased had been having an affair with his wife. This was ‘a radical deviation from the tasks incidental to his employment’.

It is because of these distinctions that – while acknowledging the concerns raised by Wagener (op cit) – I am of the view that the concerns are of academic consideration. The SCA has provided some form of clarity over concerns. It is, therefore, still possible to draw a distinction between personal and vicarious liability.

Conclusion

The decision of the SCA in Morudu set the bar straight, especially after the decisions of the CC in the F and K mattes. The SCA did not allow itself to lightly invoke constitutional norms even where it is unnecessary to do so – an approach frowned on. It bordered on a fine line, carefully distinguishing the case from the standard set by O’Regan J in the K matter. It did not cloud itself in the fact that Duba was employed by the South African Police Service (SAPS), a body which is tasked to protect citizens. It considered the specific business of the SAPS as far as Duba’s employment was concerned. By so doing the SCA guarded the state from liability where it was too remote for imputation.

 

Siyabonga Sibisi LLB (UKZN) is a candidate attorney at the Durban Justice Centre.

 

This article was first published in De Rebus in 2016 (Nov) DR 52.