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Article 10/2022

On what basis will an employer be vicariously liable for the wrongs committed by an employee?

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The general principle is that an employer is vicariously liable for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).

However, the above general principle is not applicable in so-called deviation matters – where an employee commits a wrong entirely for its own purposes (Minister of Police v Rabie 1986 (1) SA 117 (A), so further developed in K v Minister of Safety and Security 2005 (6) SA 419 (CC)).

The test to determine vicarious liability in deviation matters can be summarised as follows:

  • step 1: determine whether the subjective intention of the perpetrator was to act solely for his/her own interest – this entails a factual assessment
  • step 2: if so, determine objectively whether the wrong committed is sufficiently connected to the business of the employer – this entails a mix of factual assessment and law
  • the real question to be answered within deviation matters is therefore whether a sufficiently close link exists between the wrong and the business of the employer and the following principles can be extracted from relevant case law:
  1. the link is not established when the business of the employer merely furnished the employee with an opportunity to commit the wrong;
  2. something more than a mere opportunity is required to establish the required causal link;
  3. the role to be played by the creation of risk of harm by the business of the employer is an important factor (Stallion Security (Pty) Ltd v Van Staden (2019) 40 ILJ 2695 (SCA); (2019) 30 SALLR 191 (SCA));
  4. another factor to be taken into account is whether the employer contractually undertook to protect the constitutional right to personal safety of the employees of the client whilst at the workplace and placed the employee in charge of this responsibility – in Stallion Security, the employer provided security services to its client and placed the employee who committed the harm in charge of this responsibility, allowing the employee to commit the relevant wrongs.  The aforesaid factors provided the required normative link between the employer’s business and the harm suffered by the victim, thereby establishing vicarious liability on the part of the employer.
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?