Some reflections on vicarious liability and dishonest employees

• Jurisdiction: South Africa
• Author: T J Scott
• Published date: 29 May 2019
• Pages: 265-279
• Date: 29 May 2019

Some reflections on vicarious liability and dishonest

employees

2000 Acta Juridica 265

T J Scott *

University of Pretoria

I Introduction

It would appear as if the condu ct of dishonest employees and its effect upon our law

of vicarious liability has, over the last year or two, caused our courts a fair amount

of difficulty; it is abundantly clear th at judges do not always share the same view on

basic concepts of and approaches to the question of the vicarious liability of an

employer for the delict committed by his or her employee in the course of the

latter's employment. 1

The field of vicarious li ability in our law bears the indelible stamp of th e principles

of English tort law pertaining to the liability of a master for the t orts of his servant. 2

This is evident from the copious references by our judges to English case law and

authors. 3 The reason for this historical reliance on English l aw is to be attributed to

the fact that our own l aw of delict is firmly based on the general principle of no

liability without fault: 4 English sources, wh ich have always been readily available

and understandable (in contrast with Dutch, French and German materials), have

provided the necessary principles for the adjudication of cases i n which a deviation

from the ordinary principles of dolus and culpa was necessitated by the needs of a

more sophisticated community and has been received int o modern South African

law. 5

The vi carious liability of an employer for the d elict of his or he r empl oyee i s an

instance of so-called strict liability, or liability without

* BA(Hons) LLB(Pret) Dr Jur(Leyden), Professor of Private Law, University of Pretoria

2000 Acta Juridica 266

fault: although there are theoretical objections 6 against denoting this type of

liability as delictual liabilit y, 7 the general approach in our case law has been that

one is dealing with a field of delictual strict liability. 8

1 See in particular Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a as

Volkskas Bank 1997 (2) SA 591 (W); Maxalanga v Mpela 1998 (3) SA 970 (Tk); ESS Kay Electonics Pty

Ltd v First National Bank of Southern Africa Ltd 1998 (4) SA 1102 (W); and Bond Equipment (Pretoria)

(Pty) Ltd v ABSA Bank Ltd 1999 (2) SA 63 (W).

2 N J van der Merwe and P J J Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg 6ed (1989) 508;

D McQuoid-Mason 'Vicarious and strict liability' in LAWSA vol 30, para 41; see also P Q R Boberg 'Oak

tree or acorn? — Conflicting approaches to our law of delict' (1966) 83 SALJ 150 at 169 sqq.

3 Cf Nienaber JA in Midway Two Engineering & Construction Services v Transnet Bpk 1998 (3) SA 17

(SCA) 22B-C.

4 Cf J C van der Walt and J R Midgley Delict: Principles and Cases vol 1 2ed (1997) 22; J Neethling, J M

Potgieter and P J Visser Law of Delict 3ed (1999) 361.

5 For the background to this form of delictual liability in South African law see in general T B Barlow The

South African Law of Vicarious Liability in Delict (1939) 1 sqq 61 sqq 84 sqq; W E Scott Middellike

Aanspreeklikheid in die Suid-Afrikaanse Reg (1983) 1-15; Neethling, Potgieter and Visser (n 4) 373; see

also Maseka v Mdlalose 1998 (1) SA 1 (SCA) at 13H-14C.

6 These objections proceed from the total acceptance of a generalized concept of delict of which fault

(intention and negligence) forms an integral (inalienable) part.

7 See eg Van der Merwe and Olivier (n 2) 508; P J J Olivier 'Enkele verdere beskouings oor deliktuele en

verrykings — aanspreeklikheid' (1965) THRHR 56 at 59 sqq.

8 Treated as such in: English tort law where the tortious nature of a claim against a master/ employer is

accepted in all the text books consulted by me; in Dutch law — s 1403 of the old Burgerlijk Wetboek; s

6.170 of the new BW; German law - §831 of the Bürgerliches Gesetzbuch; and French law — s 1384 of

the Code Civile. To speculate whether this branch of law should be regarded as a part of our law of delict,

or not, appears to be a futile exercise in this day and age.

2000 Acta Juridica 265

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