Reflections on the historical evolution of vicarious liability and its implications on theftuous employees

The doctrine of vicarious liability has reached its pinnacle during the 19th century at the clarion call of economic and technological advances. During this time span, the English model for testing vicarious liability on the conduct of theftuousemployees, was the so-called “close connection” test. The latter test suggests that where an action is closely connected with an employee’s duties, an employer can be found vicariously liable. South Africa, influenced by the English laws of tort, jettisoned its own test, the standard test in favour for the “close connection” test. The standard test for vicarious liability is expressed as whether the employee was acting in the course and scope of his or her employment at the time the delict was committed. The latter test, as adumbrated later in the text, makes the theftuousemployee the focal point for liability as per case law ABSA Bank v Bond Equipment, Ess Kay Electronics, Phoebus Apollo and Columbus Joint Venture. Such approach is not economically feasible. The impracticability of the standard test actuated the South African Courts and particularly the Constitutional Court to adopt and emulate the English “close connection” test. The Constitutional Court in addition to the close connection test, developed the principle of vicarious liability to be in sync with the fundamental constitutional rights of the citizens. By doing so, the Courts make the pendulum swinging against employers in favour of third parties - a dichotomy to the standard test. Examples of the decisions in which the “close connection” test reign superior are thecase laws of Gore, TFN Diamond Cutting Works and Greater Johannesburg Transitional Metropolitan Council. The Courts by following the “close connection” test have also been influenced by the fact that an employer is usually more able than an employee to satisfy claims and is in a better position to pass the burden of liability by way of insurance. Because of the similarity between the two tests, a transition would be seemed smooth. But, one can also conclude that although the acceptance of the close connection test, the South African law does not rule out an employer’s liability for wilful delicts of theftuousemployees committed in the course and scope of the latter’s employment.