When is an employer vicariously liable?

In K v Minister of Safety and Security, the Constitutional Court laid down the test to be used to determine the vicarious liability of an employer for the wrongdoing of his employee.

The test requires two questions to be asked:

• Were the wrongful acts done solely for purposes of the employee?
• If the acts were for the employee’s own purposes, is there a sufficiently close link between the employee’s acts and the purposes of the and the business of the employer to give rise to vicarious liability?

The first question is subjective. The second question is objective. Even if the first question is answered in the affirmative, the employer may still be held liable if the second question is answered in the affirmative.

On the night of the incident, the deceased went to Booysen’s home for supper during a meal break, therefore he was not acting in his capacity as a member of the South African Police Service (SAPS) when he visited her. Accordingly, the deceased was acting solely for his own purposes on the day of the shooting.

In answer to the second question, the SCA held that a sufficient link between the acts of the deceased and the purposes of the SAPS did not exist. The court held that the fact that the firearm the deceased used had been issued to him by the SAPS did not create vicarious liability.

Vicarious liability would be imputed to the minister if the firearm had been issued to the deceased in circumstances where the deceased’s previous behaviour showed that he was not fit to handle a firearm. That was not the case in this matter and the SCA held that the minister of safety and security was not liable for the damages suffered by Booysen.