MOGOENG J
the victim, took the victim to the police station, filled out a docket, wrongfully
charged him with attempted housebreaking and locked him up.
[47] That case is an example of an employee‘s radical deviation from the tasks
incidental to his or her employment. The issue was whether the Minister of Police
was vicariously liable for damages arising from the delictual conduct of the off-duty
policeman. The test for determining vicarious liability was formulated in these terms:
―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. 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.‖31 (Citation omitted.)
[48] What flows from this test and the test in K, is that even if the nature of the
conduct giving rise to the delictual claim suggests that the employer did not or could
not have authorised that conduct, and even if the deviation is great in respect of space
and time, that would not necessarily exempt the employer from liability.
The
employer could still be held vicariously liable if a connection exists between the
conduct complained of and the business of the employer. That link must, however, be
a real and sufficiently close one. The test was met in Rabie and the state was held
vicariously liable.32
31
Rabie above n 30 at 134C-E.
32
Rabie above n 30 was not followed in Ngobo above n 30 and Ess Kay Electronics above n 26 as well as
several other cases.
18
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