When Your Employee’s Mistake Becomes Your Problem: Understanding Vicarious Liability in South Africa

In law, not all wrongdoers bear responsibility alone. Sometimes, someone else — often their employer — can be held liable for their actions. This concept, known as vicarious liability, plays a crucial role in workplace and employment law in South Africa. But what does this really mean?

What Is Vicarious Liability?

Vicarious liability is when an employer is held responsible for the wrongful acts of an employee, provided those acts were committed in the course and scope of employment.

In simpler terms: If your employee causes harm while doing their job, you might have to answer for it—even if you weren’t involved.

This principle ensures victims can recover compensation from someone with the resources to pay while encouraging employers to implement systems that reduce workplace risks.

Who Is Liable in an Accident?

If an accident or wrongdoing occurs while an employee is performing work duties, the employer is generally liable for resulting damages under South African delict law. This covers a wide range of situations, from delivery drivers causing collisions to security guards assaulting individuals while on duty.

Note: For Road Accident Fund claims, the RAF steps in, and vicarious liability does not apply.

What Must Be Proven for a Claim?

For a successful claim of vicarious liability in South Africa, the injured party must prove:

·        The wrongdoer was employed by the defendant (the employer).

·        The wrongful act occurred within the course and scope of employment, or there was a sufficiently close connection to employment.

·        The general delictual elements (conduct, wrongfulness, fault, causation, harm) are present.

The “sufficiently close connection” test, as set out in our law means employers can be liable even for intentional wrongdoing if it is sufficiently linked to the employment relationship.

Can Employers Defend Against Vicarious Liability?

Yes. Employers can defend themselves by showing:

·        The employee acted entirely outside the scope of employment.

·        There was no close connection between the wrongful act and the employee’s job.

·        The employee acted solely for personal reasons, unrelated to their duties.

Employers may also include indemnity clauses in employment contracts to regulate internal recovery from employees, but these clauses do not shield employers from liability to third parties.

What About Discrimination and the Employment Equity Act?

Under section 60 of the Employment Equity Act, if an employee discriminates against another, the employer can be held liable unless it can prove it took all reasonable steps to prevent such misconduct. This is particularly relevant in workplace harassment and discrimination claims.

Can Employers Recover from Employees?

Yes. Under the Apportionment of Damages Act 34 of 1956, if an employer is found vicariously liable, it can seek contribution from the employee who committed the wrongful act, helping to mitigate financial losses.

Why This Matters for Your Business

Understanding vicarious liability is not just legal theory—it is crucial for:

·        Managing your risk exposure.

·        Training employees properly.

·        Putting workplace policies in place to prevent misconduct.

·        Knowing your defenses if claims arise.

At VST Attorneys, we assist businesses or individuals in:

·        Drafting policies that reduce risk.

·        Instituting or defending vicarious liability claims.

·        Navigating Employment Equity Act issues.

·        Recovering damages from at-fault employees where appropriate.

Need Assistance?

If you are facing a potential vicarious liability claim or wish to reduce your risk exposure, contact VST Attorneys today. Our team will help you protect your business while ensuring you comply with South African law.