The Close Connection Test for Vicarious Liability

• Jurisdiction: South Africa
• Citation: (2007) 18 Stell LR 451
• Date: 05 September 2019
• Author: Karin Calitz
• Pages: 451-468
• Published date: 05 September 2019

THE CLOSE CONNECTION TEST FOR

VICARIOUS LIABILITY

Karin Calitz

BA LLB LLD

Lecturer in Commercial Law, University of Stellenbosch

1  Introduction

The req uirements for t he vicarious lia bility of an employer are threefold:

an e mployment relat ionship, the c ommission of a delict, and that the delict

must have been committ ed within the scope (sometimes course and scope) of

employment.1 The last requirement ensures th at there is a measure of fairness

towards the employer who is held strictly liable.

Courts in com mon law c ountries have grappled wit h the question under

which circumsta nces an act would be within the scop e of employment,

especially i n the case of intentional wrongdoing by the employee. Court s in

Canada, the Unite d Kingdom and Australia h ave in recent times moved away

from a strict interpretation of scope of employment and ap plied the “close

connection” test2 t o answer this ques tion. This trend has been followed in

South Africa by the Constitutiona l Court in NK v Minister of Safety and

Security.3 The C onstitutional C ourt developed the close connection tes t to

reect constit utional values, which raises questions on how this test is to be

applied to cases in which const itutional rights and duties are less promi nent.

The aim of this a rticle is to examine the meaning of the close connection

test as formulated by the Constitutional Court against the background of the

development of the test i n those common law countr ies referred to above. It

commences with a discussion of NK v Minister of Safety and Security, followed

by an assessment of the origin of the close connection test and its development

in common law countries. Thereafter the meaning of the test as applied by the

Constitutional Court is analysed, and its applicability to those cases where con-

stitutional rights and duties are less prominent is discussed. South African cases

decided after the NK case are then examined, and in conclusion some remarks

are made on the possible application of the test in future cases.

2   The decision of the Constitutional Court in NK v Minister of

Safety and Security

The facts in the NK case were as follows: In the early hours of the morning

a young woman, the applicant in the case, was stranded without transport. She

tried to phone her mother from a garage shop to ask her to come and fetch her

1 Mkize v Ma rtens 1914 AD 382 390.

2 Lister v Hesley Ha ll [2001] UKHL 22 para 25.

3 2005 26 ILJ 1205 (CC).

451

(2007) 18 Stell LR 451

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when three policemen on duty, in unifor m and in a police vehicle, offere d to

take her home. On t he way to her home they took a wrong t urn and stopped

somewhere, where all three of them raped her. She was left to nd her own

way home.

The policemen were subsequently tried a nd convicted and t he applicant

thereafter sued for da mages. The High Cour t dismissed the a pplicant’s

claim based on t he vicarious liability of the Minister and she appealed t o the

Supreme Court of Appeal.

The Supreme Court of Appeal4 dismissed the appeal on the ba sis that the

acts of the policemen could not be regarded as having been done within the

course and scope of their employment. The Court stated that difculty often

arises in the so-called dev iation cases in which t he employer could still be

held liable even though the employee deviated from inst ructions, but in such

cases the question was

“whether the deviation was of such a degree that it can be said that in doing what he or she did the

employee was still exercising functions to which he or she had been appointed or was still carrying

out some instruction of his or her employer”.5

This reasoning relied on past South African cases which held that the devia-

tion from author ised duties should not be too d rastic. If so, the act would not

fall within the sco pe of employment.6

The Supreme Court of Appeal declined to develop the common law test for

vicarious liability to re ect the spirit, pur port and objects of the Constitution,

as urged by council for the applica nt. The Court held that it is

“unnecessary to consider the question of the development of the law which in any event would best be

dealt with by the legislature should a change in law be considered necessary”.7

2 1 Policy considerations

On appeal, t he Constitutional Court held that the common law doctrine of

vicarious liability should be developed to reect the spirit, purport and objects

of the C onstitution. The Cou rt held that i n the light of the policy considera-

tions8 on which t he doctrine of vicarious liability is based and t he normative

inuence of the Constit ution, it can not be asser ted, as t he courts did in the

past, that it is purely a factual matter whether a certain act falls wit hin the

scope of employment. This would in effect ster ilise the common law rules of

vicarious liability, and isolate them from the pervasive normative inuence of

the Constitution.9

4 K v Mini ster of Safe ty and S ecurity 20 05 26 ILJ 681 (SCA) (due to diffe rences in the way in which the

name of the case was repo rted in the ILJ, the CC judgme nt will be referred to as the NK ca se and the SCA

judgment as t he K case).

5 Para 4.

6 See the minor ity decision in Feld man v Mall 1945 AD 733 and Viljoen v Sm ith 1997 1 SA 309 (A).

7 K v Minister of Sa fety and Secu rity supra par a 8.

8 These are simi lar to the policy consider ations considered to b e the basis for vicarious lia bility in Bazley v

Curry 1999 2 SCR 534.

9 NK v Minister of S afety and Sec urity para 22.

452 STELL LR 2007 3

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