O’REGAN J
formulated a test for determining vicarious liability in such cases, which has since
been applied in many cases. He reasoned as follows ─
“It seems clear that an act done by a servant solely for his own interests and
purposes, although occasioned by his employment, may fall outside the
course or scope of his employment, and that in deciding whether an act by the
servant does so fall, some reference is to be made to the servant’s intention
(cf Estate Van der Byl v Swanepoel 1927 AD 141 at 150). The test is in this
regard subjective. On the other hand, if there is nevertheless a sufficiently
close link between the servant’s acts for his own interests and purposes and
the business of his master, the master may yet be liable. This is an objective
test.”39
[32]
The approach makes it clear that there are two questions to be asked. The first
is whether the wrongful acts were done solely for the purposes of the employee. This
question requires a subjective consideration of the employee’s state of mind and is a
purely factual question.
Even if it is answered in the affirmative, however, the
employer may nevertheless be liable vicariously if the second question, an objective
one, is answered affirmatively. That question is whether, even though the acts done
have been done solely for the purpose of the employee, there is nevertheless a
sufficiently close link between the employee’s acts for his own interests and the
purposes and the business of the employer. This question does not raise purely factual
questions, but mixed questions of fact and law. The questions of law it raises relate to
39
Id at 134C-E. Although Jansen JA’s judgment was criticised in a later case, especially insofar as it appeared
to adopt “creation of risk” as a material factor relevant to the determination of vicarious liability (Ngobo above n
20 at 832B-D), its statement of the standard test cited in this paragraph was not directly criticised (see Japmoco
above n 25 at para 11). Indeed, the Rabie test has been applied in many cases since Ngobo. See, for example,
Minister van Veiligheid and Sekuriteit v Phoebus Apollo above n 28 at para 10; Japmoco above n 25 at para 11;
ABSA above n 25 per Zulman JA at para 5; Minister of Safety and Security v Jordaan t/a Andre Jordaan
Transport above n 28 at para 5.
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