Vicarious liability in South African law

Looking back at Voet's bold assertion of vicarious liability for wrongful acts by employees within the scope of their employment, we can now appreciate that here, as so often, a general principle was arrived at by a process of generalization and abstraction on the basis of the massive casuistry contained in the Roman sources.

negligentium aut malignorum operas ministerio certo aut officio addixerint", in the words, again, of Voet.^[5886] The servant's delict was attributable to the master on account of the fact that he had chosen him to do the job at hand. By and large, the principle of strict vicarious liability managed to establish itself in Roman-Dutch law,^[5887] but there were also those who drew attention to and criticized the false generalization of the Roman sources upon which it was based.^[5888]

South African courts, when they were first confronted with the issue, did not delve deeply into the sources, whether those of Roman law or of Roman-Dutch law.^{[5889] [5890] [5891] They tended to accept what fitted in with the corresponding English doctrine, which was much more familiar to them. The wage liability for acts beyond the scope of employment was hardly ever mentioned"11 and passed into complete oblivion. At the same time the master's liability in full for acts within the scope of employment was unhesitatingly accepted, sources of the ius commune merely being used, selectively, to support Anglo-American authorities. "The law on the subject is thus broadly stated by Story on Agency...", reads a highly characteristic passage by De Villiers CJ, in the 1874 decision of Gifford v. Table Bay Dock and Breakwater Management}

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commission,

"(t]he principal is liable to third persons for the torts, negligences, and other malfeasances or misfeasances and omissions of his servant or agent in the course of his employment, although the principal did not authorize or justify or participate in, or indeed know of such misconduct, or even if he forbade the acts or disproved of them.

This passage, incidentally, is the famous fragment Qui columnam.^[5892] The particle "que" in "eorumque" must have been understood disjunctively by the Chiefjustice. Despite occasional criticism,^[5893] South African courts have continued to rely on English precedents, particularly when they were called upon to determine the concept of a servant and to define the scope of the employment.^[5894] The doctrine of common employment, according to which a servant may not sue his master for the negligence of a fellow-servant, has, however, been rejected, after a thorough examination of Roman-Dutch, English, American, Scottish and modern continental authorities, by Kotze CJ,^[5895] Lord De Villiers' great counterpart in the Transvaal.

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