Cluver Markotter

Security company liable for intentional wrongdoing of employee? by Waseem Hussain

In Stallion Security (Pty) Limited v Van Staden (526/2018) [2019] ZASCA 127 (27 September 2019) the court had to decide on the liability of Stallion Security Services (“Stallion”) for a robbery committed by one of its employees.

The employee, Mr Khumalo, was a site supervisor of a premises where Stallion rendered security services for a Bidvest company (“the client”). He knew that an employee of the client, Mr Van Staden, often worked late. He also knew of a petty cash box kept in the client offices. He decided to rob Mr Van Staden and to attempt to locate the petty cash box. For this purpose, he obtained a firearm from a co-employee, gained access to the client office area and forced Mr Van Staden at gunpoint to transfer money to his (Khumalo’s) bank account. Mr Van Staden transferred R35,000.00, while still at the client offices. Afterwards Mr Khumalo escorted Mr Van Staden out of the building. He walked behind him carrying the firearm and forced Mr Van Staden to drive to the vicinity of the Eastgate shopping complex. When the car came to a standstill near Eastgate, Mr Khumalo, fearing (as he said later) that Mr Van Staden would call the police, shot and killed Mr Van Staden. He then got out of the car and ran away, and was later apprehended.

In this case Mr Van Staden’s surviving spouse claimed delictual damages from Stallion, alleging that Stallion was vicariously liable for Mr Khumalo’s wrong. Although the robbery was self-evidently committed entirely for Mr Khumalo’s own purposes, Ms Van Staden alleged that it was sufficiently closely linked to his employment to regard it as being committed in the course of his employment and to justify imposing vicarious liability on his employer, Stallion.

The trial court held that, although the intentional wrongs of Mr Khumalo were committed entirely for his own purposes, the killing of the deceased was nevertheless sufficiently closely linked to Mr Khumalo’s employment with Stallion. The trial court gave judgment in favour of Ms Van Staden in the amount of some R1,6 million, with costs. Stallion appealed against this judgment.

The Supreme Court of Appeal found that Stallion had furnished Mr Khumalo with much more than a “mere opportunity” to commit the wrongs. It had enabled him to enter and exit from their client’s office area without detection and had afforded him intimate knowledge of the layout and the security services at the premises. In addition, it was by virtue of his employment with Stallion that Mr Khumalo was in possession of an “override key” to the client’s office area. This situation created a material risk that Mr Khumalo might abuse his powers. That risk rendered the deceased vulnerable and facilitated the robbery and consequentially the murder.

The fact that Stallion had placed Mr Khumalo in control of discharging the contractual duty to render the security services which Stallion had undertaken, provided a significant link between Stallion’s business and the harm suffered by Ms van Staden. For that reason, the court held that there was a sufficiently close link between the employment of Mr Khumalo in the business of Stallion and the death of the deceased. The court held that Stallion was therefore vicariously liable for the wrongdoing of Mr Khumalo. The trial court’s judgment in favour of Ms Van Staden for damages for loss of support was therefore upheld.

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