MOGOENG J
[39] For these reasons leave to appeal stands to be granted. By way of background,
it is necessary to highlight the general principles of vicarious liability and how they
evolved until K was decided. I do so below.
Vicarious liability in general
[40] Vicarious liability means a person may be held liable for the wrongful act or
omission of another even though the former did not, strictly speaking, engage in any
wrongful conduct. This would arise where there is a particular relationship between
those persons, such as employment.25 As a general rule, an employer is vicariously
liable for the wrongful acts or omissions of an employee committed within the course
and scope of employment, or whilst the employee was engaged in any activity
reasonably incidental to it.26
[41] Two tests apply to the determination of vicarious liability. One applies when an
employee commits the delict while going about the employer‘s business. This is
generally regarded as the ‗standard test‘. The other test finds application where
wrongdoing takes place outside the course and scope of employment. These are
known as ‗deviation cases‘. The matter before us is a typical deviation case.
25
Neethling et al Law of Delict 6 ed (Lexis Nexis, Durban 2010) at 365-71.
26
See for example Ess Kay Electronics Pte Ltd and Another v First National Bank of Southern Africa Ltd 2001
(1) SA 1214 (SCA) (Ess Kay Electronics) at para 7; and ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd
2001 (1) SA 372 (SCA) at para 5.
15
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