Can employer be held liable for an employee’s conduct?

According to the principle of vicarious liability, an employer may be held responsible for the (mis)conduct of an employee. This is if the employee commits this act during the course and scope of their employment. As with many legal principles, the abovementioned theory is not as cut-anddried as the theory. The case of Booysen v Minister of Safety and Security [2018] ZACC 18 tells us more.

• Two police reservists – Mr Mongo and Ms Booysen - had been in a romantic relationship. Mr Mongo dropped Ms Booysen at her home, in a police car, for her supper break.

• At the supper break Mr Mongo drew his pistol and shot Ms Booysen in the face. He then committed suicide.

• After undergoing medical treatment, Ms Booysen sued the Minister for the injury she had suffered. Her case was based on vicarious liability.

The Minister conceded that the shooting amounted to a delict – it was impossible to do otherwise – but denied that it was linked closely enough to Mr Mongo’s employment for vicarious liability to arise.

• The High Court upheld Ms Booysen’s claim. The majority of the Supreme Court of Appeals (SCA) found that the second leg of the test for vicarious liability had not been met. The key principle is about where individuals seek assistance or place their trust in SAPS members in their official capacity.

• The SCA concluded that Ms Booysen and Mr Mongo “were not relating to each other as police officer and citizen but were lovers in a domestic setting”. She trusted him not because he was a police officer but because he was an intimate friend. He violated her personal rights, the SCA ruled.

• This case was taken on appeal to the Constitutional Court (CC). The majority ruled that the Court did not have jurisdiction to hear the appeal because its powers are limited to cases which raise a “constitutional issue” or which concern “an issue of general public importance”.

• What the CC did emphasise was that the two-stage inquiry for establishing vicarious liability, outlined above, “is now an established legal test” (para 62) and that different “factors”, depending on the circumstances of each case, must be weighed up to determine whether its “requirements” are met .

Jonathan Goldberg is CEO of Global Business Solutions