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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.
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?