2020 volume 2 p 338

• Published date: 14 April 2020
• Date: 14 April 2020

TSAR 2020 . 2 [ISSN 0257 – 7747]

338 SCOTT

VICARIOUS LIABILITY: A POSITIVE DEVELOPMENT IN

RESOLVING DEVIATION CASES

Van Staden v Khumalo (89921/15) 2017 ZAGPPHC 764 (24 October 2017)

Stallion Security v Van Staden 2020 1 SA 64 (SCA)

1 Introduction

The last few years have seen a proliferation of judgments dealing with so- called

“deviation cases” in the sphere of vicar ious liability, in particula r where employees

embarking on “frolics of their own” (Feldman (Pty) Ltd v Mall 1945 AD 733 744)

caused harm intentionally. In most of these cases the perpetrators whose unlawful

actions were aimed at members of the public were civil servants in the employ of

the minister of police ( previously referred to as the minister of safety and se curity),

which had the effect that the judgments delivered impacted greatly on what could

be termed state liability, involving certain consider ations that would normally not

be relevant where all the litigants were pr ivate individuals.

From the beginning of the present millennium to the latest judgment of the

supreme court of appeal i n respect of a “police case” in 2019 (Minister of Safety

and Securit y v Msi (273/2018) 2019 ZASCA 26 (28 March 2019)), at least eighteen

judgments emanati ng from the constit utional court, the supreme court of appeal

and provincial divisions of the high cou rt dealing with deviation cases involving

intentional delicts by civil ser vants were reported in the Sou th African Law Reports,

the All South African Law Reports a nd the SAFLII repor ts. In addition, the same

period saw only one case involving a fraudulent employee reported where the

state was not involved as the responsible employer (the rest dealing with negligent

employees). In the normal course of events, this would lead an object ive observer to

the conclusion that our law has ultimately been rmly settled in respect of this rather

intricate branch of our law of delict. At one stage it appeared to be the case: since

the ground-break ing judgment of O’Regan J in K v Minister of Safety and Security

(2005 6 SA 419 (CC)), which effected an important shift in the way of determining

whether an employee’s delict was committed within the scope and ambit of his or

her employment, employers were, with one exception (the Zimbabwean case of

Munengami v Minister of Defence 2007 2 SA 320 (ZH)), ultimately held liable in all

instances of intentional deviations by their employees for nearly a decade. (See eg

Commissioner, South African Re venue Service v TFN Diamond C utting Works (Pty)

Ltd 2005 5 SA 113 (SCA); Minister of Finance v Gore NO 2007 1 SA 111 (SCA);

Minister of Safety and Se curity v Luiters 2007 2 SA 106 (CC); Twalo v The Minister

of Safety and Security 2009 2 All SA 491 (E); South African Post Ofce v De Lacy

2009 5 SA 255 (SCA); F v Minister of Safety and Securit y 2012 1 SA 536 (CC);

Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety a nd Security

2012 2 SA 137 (SCA); Minister of Defence v Von Benecke 2013 2 SA 361 (SCA);

Pehlani v Minister of Police (9105/11) 2014 ZAWCHC 146 (25 September 2014);

and cf Naylor v Jansen; Janse n v Naylor 2006 3 SA 546 (SCA).) (For more detail

see Neethling and Potgieter Neethling-Potgieter-Visser The Law of Delict (2015)

395 n 148; Scott 2017 TSAR 872 874-876.)

This patter n was broken in 2015 when in the judgment of Minister of Safety and

Security v Mor udu ((1084/13) 2015 ZASCA 91 (29 May 2015)) the supreme court of

appeal absolved the state from vica rious liability for the harm caused by the mu rder

of a breadwinner by a policeman, in the process allowing an appeal from the high

2020 TSAR 338

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VICARIOUS LIA BILITY: A POSITIVE DEV ELOPMENT IN RESOLVIN G DEVIATION CASES 339

[ISSN 0257 – 7747] TSAR 2020 . 2

court (Morudu v Minister of Safety and Sec urity case no 35474/2002 (5 August

2013) (unreported)). A crucial aspect of this judgment was the court’s willingness

to discount an impor tant factor in determining whether the perpetrator acted i n the

course of h is employment – the fact t hat the delinquent policeman used an ofcial

vehicle – by applying a speculative thought process (viz that the per petrator could

just as well have used his own vehicle to reach the crime scene) (see Scott 2016

TSAR 332 for a critical evaluation).

This trend conti nued when the supreme cour t of appeal handed down the

judgment in Minister of Safet y and Securit y v Booysen ((35/2016) 2016 ZASCA

201 (9 December 2016)) in which an appeal from the trial court (Booysen v The

Minister of Safety and Se curity case no 2915/13 (unreported) 15-05-2015 (ECG))

was allowed, exempting the state from paying damages where a policeman had

seriously wounded his lover before taking his own life with his ser vice pistol (see

Scott 2017 TSAR 872 for a negative evaluation of the judgment). Although the matter

proceeded to the constitutional court, the majority held that it lacked the necessary

jurisdiction, which meant that the supreme cour t of appeal’s judgment remained

valid (Booysen v Minister of Safet y and Security 2018 6 SA 1 (CC); for criticism see

Scott 2019 TSAR 150). The most recent judgment of the supreme court of appeal

before the one which forms the subject of this dis cussion, namely Minister of Safety

and Securit y v Msi ((9273/2018) 2019 ZASCA 26 (28 March 2019)), in which the

court discounted several of the factors normally relevant in ascertaining whether a

close enough connection existe d between the perpetrat or of the wrongful act and the

enterprise of his or her employer by reverting to a process of speculative reasoning

(see Scott 2020 TSAR 164 179), continued following the trend adopted in its Moru du

and Booysen judgments. In the wake of its three previously mentioned judgments,

the judgment of Stallion Securit y v Van Staden came as quite a sur prise. The facts

of this case suggested that the plaintiff had a very slight chance of success should

the ratio decidendi of the three previous decisions have been followed. This raises

the crucial question rega rding the tr ue basis on which it can be disting uished from

these judgments.

The legal position regarding the requirements for holding an employer liable

for the delicts of an employee is abundantly clear: (a) at the time of commission

of the delict, an employer-employee relationship must have existed between the

defendant-employer and the perpet rator; (b) the employee must have committed

a delict; and (c) the employee must have committed the delict within the cou rse

and scope of his or her employment (Van der Merwe and Olivier Die Onregmatige

Daad in die Suid-Afrik aanse Reg (1989) 509-519; Neethling and Potgieter 390-

397; cf McQuoid-Mason “Vicarious liability” XX X LAWS A (2002) par 289-293;

Loubser and Midgley (eds) The Law of Delict in South Africa (2017) 468-469,

473-476; and Van der Walt and Midgley “Delict” XV LAWSA (2016) par 39). As

pointed out previously (Scott 2016 TSAR 332, 2020 TSAR 164), in all the deviation

cases cited above the application of the rst two requirements appeared relatively

uncomplicated; the outcome of all these judgments depended on the content,

interpretat ion and application of the third requirement.

Determin ing whether an employee acted within the course and scope of

employment requires application of the so-called “standard test”. This test was

authoritatively formulated as follows in Minister of Police v Rabie:

“It seems clear th at an act done by a ser vant solely for his own int erests and pu rposes, alt hough

occasioned by his e mployment, may fall outside the co urse or scope of his employmen t, and that in

deciding wheth er an act by the servant does so fa ll, some reference is to be made to the s ervant’s

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