2020 volume 1 p 164

• Published date: 03 February 2020
• Date: 03 February 2020

TSAR 2020

. 1 [ISSN 0257 – 7747]

164 SCOTT

VICARIOUS LIABILITY OF THE STATE FOR INTENTIONAL

POLICE DELICTS:

A NOTEWORTHY “CONCEALED” DEVIATION CASE

The Minister of Safety and Security v Koleka Nancy Msi case no CA17/2017 ECG

(28 November 2017)

Minister of Safety and Se curity v Msi (273/2018) 2019 ZASCA 26 (28 March 2019)

1 Introduction

One can tru ly sympathise with legal prac titioners who are nowadays called upon

to advise on whether a client should pursue a d elictual claim against t he state

based on vicarious liabil ity, where the civil servant-wrongdoer in quest ion caused

harm while intentionally pur suing his or her own interests. By far the majority of

judgments on vica rious liability that have ador ned the pages of our law repor ts

with monotonous regularity si nce the advent of the twenty-rst century deal with

these so-called “deviation cases”. Given the sheer number of these judg ments, it

could be expected that a clear pict ure of the applicable principles, as well as their

method of application, would have emerged by this time. However, such a belief

appears idle in view of some of the latest judgment s of our supreme court of appeal

and constitut ional court. Commenti ng on the judgment of the last-mentioned

court in Minister of S afety and Securit y v Booysen ((35/2016) 2016 ZASCA 201

(9 December 2016)), Kobrin (2017:5 De Rebus 28 29) states that “the prin ciples of

vicarious l iability are easy to understand but difcult to adjudicate”. In the recent

past I expressed the same sentiment i n respect of cert ain aspects of an employer’s

vicarious liability (Scott 2016 TSAR 332 337), but the supreme court of appe al’s most

recent pronouncements on employers’ liability on dev iation cases in the case under

discussion show that what would appear to be ea sily understandable pri nciples are

in fact equally dif cult to grasp, as to adjudicate or apply.

In the l ight of a v irtual deluge of aca demic writing on dev iation cases triggered

by t he judgments of the last two decades (see Scott 2017 TS AR 872 873-875 for

references to discussions of the case law i n point), it is unnecessar y to reproduce the

detailed rules of vicar ious liability. For present purposes it should prove adequate to

offer a brief statement of the salient conditions for an e mployer’s vicarious liability

and, particu larly, of the so-called “stand ard test” employed for determining whethe r

a wrongdoer-employee acted within the sc ope of his or her employment.

There is broad consens us on the three basic requi rements for an employer’s

vicarious liability, namely that: (a) an employer-employee relationship should have

existed at the time when t he delict was committed; ( b) the employee must have

2020 TSAR 164

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VICARIOUS LIA BILITY OF THE STATE FOR IN TENTIONAL POLICE DELIC TS 165

[ISSN 0257 – 7747] TSAR 2020

. 1

committed a delict a nd (c) the delict should have been committe d within the scope

of his or her employment (Neethli ng and Potgieter Neethling-Potgieter-Visser The

Law of Delict (2015) 390-397; Van der Merwe and Olivier Die Onreg matige Daad in

die Suid-Afrikaanse Reg (1989) 509-519; cf McQuoid-Mason “Vicarious liability”

XXX LAWS A (2002) par 289-293; Loubser and Midgley (eds) The Law of Delict in

South Africa (2017) 468-470 and Van der Walt and Midg ley “Delict” XV LAW SA

(3 ed) par 39 who do not furnish these t hree requirements explicitly, but effectively

acknowledge them). Application of the rst two requi rements would appear to be

relatively uncomplicated (Scott 2016 TSAR 332). All the latest judgments referred

to above hinge on the content and application of the thi rd requirement, which

requirement also covers situ ations where an employee disassociated hi m or herself

from the business of his or her employer, thereby acti ng “on a frolic of his (her)

own” (Feldman (Pty) Ltd v Mall 1945 AD 733).

The standard te st is employed to determine whether a n employee-wrongdoer

acted w ithin the s cope of employment. Its application is typically triggered when

an employee has committed a delict wh ile deviating from his or her nor mal duties.

The succinct formulation of th is two-tier test in Minister of Police v Rabie (1986 1

SA 117 (A) 134C-E) is generally taken as t he point of departure. It determ ines that,

subjectively jud ged in terms of the intention of an employee, an act performed by

him or her solely for own purposes, not withstanding bei ng occasioned by his or

her employment, will norma lly fall outside the course and scope of employment.

However, if a sufciently close link between such act and the employer’s business can

still object ively be esta blished, the employer may still be liable. The objective stage

of the test was initially regar ded as purely factual (see eg Minister van Veiligheid en

Sekuriteit v Phoebus Ap ollo Aviation BK 2002 5 SA 475 (SCA) 482C-F), but a most

crucial change was brought about by the ground-bre aking judgment in K v Minister

of Safety and Security (2005 6 SA 419 (CC)), a veritable Copernican tur ning-point

in the method of application of the standa rd test in deviation cases (Scott 2017 TSAR

872 873, 2019 TSAR 150). In the K judgment (441I, per O’Regan J) the constitutional

court developed the test to be b oth factual and nor mative to prevent its application

from offending the Bill of Rights or bei ng contrary to ou r constitutional order.

Various considerations – inter alia the state’s constitutional obligation to prot ect

the general public, the position of tru st occupied by the employee, the fact that

the employee’s wayward conduct could be viewed as both a positive act and an

omission, the fact that the employee was dr essed in a police uniform, issued with a n

ofcial re-ar m, drove a police vehicle etc – have since then swayed courts to  nd

a s ufciently close connection between the employee’s del ict a nd the employer’s

business for holding the employer l iable (in the majority of cases t he state a s the

employer of members of the South African Police Service). In F v Minister of Safety

and Securit y (2012 1 SA 536 (CC)) even the fact that the policeman- perpetrator was

not on full-time dut y could not prevent the state from escaping liability.

The K judgment introduced a 10-year period of successful litigation for those who

had suffered harm at the hands of employees who ha d subjectively disass ociated

themselves from their terms of employment, but whose actions could objectively

be linked to the norm al activities of their employer. T he majority of these cases

concerned delicts committed by police ofcers (see eg Twalo v The Minister of

Safety and Security 2009 2 All SA 491 (E); F v Minister of Safety and Se curity

supra; Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safet y and

Security 2012 2 SA 137 (SCA) and Pehlani v Minister of Police (9105/ 11) 2014

ZAWCHC 146 (25 September 2014)). In these ca ses, which reached the supreme

court of appeal and the c onstitutional cour t, success for the plaintiffs ca me only

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