|On or about 03 November 2014, an employee of Stallion Security (Pty) Ltd (the “Appellant”), namely Mr. Khumalo, murdered Ms Van Staden’s (the “Respondent”) spouse (the “Deceased”), who was employed as a financial manager at the head office of Bidvest Panalpina Logistics (Pty) Ltd (“Bidvest”). The issue considered in this appeal was whether the Appellant was vicariously liable for the Respondent’s claim for loss of support as a result of the death of the Deceased.
The Appellant is a security company, which concluded a contract with Bidvest in terms of which the Appellant’s contractual obligation was to provide access control at the premises secured by the Appellant, one of which was at Bidvest’s head office. Mr. Khumalo was employed as the Appellant’s site manager at the Bidvest head office to conduct regular inspections of the other security guards who were on duty, this included unexpected/after hour visits to Bidvest’s premises. Furthermore, his scope of employment included inspections of the interior of the building by using a bypass/override key in order to do so.
|In October 2014, Mr. Khumalo continuously failed to attend at work, claiming that he was ill and unable to report to duty. Due to his failure to complete his work as the site manager, the risk manager at Bidvest requested that the Appellant remove Mr. Khumalo from his position. The Appellant however, already granted Mr. Khumalo sick leave.
On or about 29 October 2014, Mr. Khumalo “hired” a firearm and, knowing that the Deceased often worked late, attempted to rob the deceased and locate a petty cash box. He attempted to do so on numerous occasions. A few days later, Mr. Khumalo shot and killed the Deceased after he was escorted out of the head office by Mr. Khumalo and taken to a shopping centre to withdraw money from an ATM. Only after the incident occurred, Mr. Khumalo confirmed in a statement to the police that he had borrowed money from certain persons and as a result of his failure to repay such monies, such persons were ‘hurting’ Mr. Khumalo (the relevance of this information will become important below).
COURT A QUO
The High Court, Pretoria (the “court a quo”) held that Mr. Khumalo’s wrongful actions were committed for his own purpose, however that the Deceased’s death was sufficiently linked to Mr. Khumalo’s employment with the Appellant. The link caused the Appellant to be found vicariously liable for the loss suffered by the Respondent. Thus, the court a quo granted judgment in favour of the Respondent.
Ordinarily, an employer will be held vicariously liable for an employee’s wrongful conduct committed during the course or within the scope of his/her employment. Difficulties arise in circumstances where an employee commits an intentional wrongful act, which is entirely for his/her own purpose (as in the above matter). The vicarious liability test is applied on a case by case basis and objectively by asking the question of whether the delict committed is “sufficiently connected to the business of the employer” in order to render the employer liable. In other words, whether a link exists between the wrongful act and the conduct authorised by the employer to justify the vicarious liability (the “risk liability”).
|The SCA considered foreign judgements, particularly the factors set out in the unanimous Supreme Court of Canada judgement in the Bazley v Curry 1999 2 SCR 534 and Jacobi v Griffiths 1999 2 SCR. The SCA agreed with the judgements in that an enquiry should not be limited to a mere ‘but for’ causal link. Thus, the factors considered were as follows:
whether liability should lie against the employer, rather than concealing the decision surrounding ‘scope of employment’ and ‘mode of conduct’;
whether the wrongful act is sufficiently related to the conduct authorised by the employer in order to justify the employer’s vicarious liability (whether a connection exists between the creation or enhancement of a risk and the wrong that stems from the conduct);
other factors such as: the opportunity that the employer afforded the employee to abuse his/her power; the extent to which the wrongful act may have furthered employer’s aims; the extent to which wrongful act was related to friction/confrontation/intimacy inherent in the employer’s enterprise; the extent of power conferred on the employee in relation to victim; and the vulnerability of potential victims due to an employee’s wrongful exercise of his/her power.
Having regard to the above factors, the SCA held that Mr. Khumalo’s wrongful act was solely for his own purposes. The SCA also found that by Mr. Khumalo being on sick leave and not committing the murder at his workplace, diminished the link between the Appellant and the murder. However, the SCA found that Mr. Khumalo’s position as the site manager enabled his opportunity to commit the wrongful act. Thus, his position created a risk that his powers as site manager might be abused, rendering the Deceased vulnerable. Furthermore, the Appellant’s contractual responsibility to protect the personal safety of Bidvest’s employee in the workplace, of which Mr. Khumalo was responsible for, created a “normative link” between the Appellant and the damages suffered by the Respondent.
The SCA accordingly dismissed the appeal with costs.
Written by Katya Oberzhitsky Stefan Bezuidenhout