The recent judgment of the South African High Court in CS and another v Swanepoel and others is important because it demonstrates that, in certain circumstances, employers could potentially be held not only vicariously liable but also directly liable for the conduct of their employees.

Facts

In 1992, Mr Swanepoel was convicted of indecent assault of a girl under the age of 16 in terms of the Sexual Offences Act, 1957.

When he applied for a post as an educator at Vleiplaas Primary School in 2001, Mr Swanepoel was asked whether he had ever been found guilty of any criminal offence. He responded in the negative and was appointed at the school.

Some years later, in 2011, the plaintiff alleged she had been sexually assaulted by Mr Swanepoel, who was now the deputy principal of the school. She instituted legal proceedings in the High Court against Mr Swanepoel as well as the MEC of Education for Western Cape and the school.

The court found that Mr Swanepoel had sexually assaulted the plaintiff and held that he was delictually liable for the assault.

Direct liability

The plaintiff alleged that the MEC and the school had failed in their legal duty to protect her from the harm she suffered when they did not properly vet Mr Swanepoel's claim that he had no criminal convictions.

The court said that it is well-established that educators and those in charge of schools have a common law duty to take care of children that have been entrusted to them, as a reasonably careful parent would for their own children and that this position has been endorsed by both the Constitutional Court and the Supreme Court of Appeal.

Sher J held that, as the employer, the Western Cape Education Department had been legally obliged to vet Mr Swanepoel before employing him to ensure not only that he was formally qualified to teach children, but also that he was a suitable and fit person to work with children and would not pose a possible danger to them. The department failed to discharge that duty.

A reasonable employer in the department's position would have foreseen the possibility that children would be at risk of being sexually exploited or assaulted by educators who had a previous conviction for the sexual assault of a minor. It therefore should have taken reasonable steps to guard against such harm occurring by conducting the appropriate due diligence for applicant educators.

The court therefore held that the department was directly liable for the harm suffered by the plaintiff.

Vicarious liability

Vicarious liability allows for an extension of liability for the acts of others to persons who did not themselves engage in any wrongful conduct. The liability arises where there is an employment relationship. In this matter, the court also found that the defendants were vicariously liable, because Mr Swanepoel committed a delictual act (the sexual assault) in the course and scope of his employment.

Key factors to consider for employers

This decision potentially broadens the grounds on which employers may be held liable when their employees commit acts of sexual harassment or sexual assault. Apart from being held liable for the conduct of employees on the basis of common law vicarious liability and being held liable for acts of unfair discrimination committed by its employees in terms of the Employment Equity Act, 1998, an employer may also be held directly liable for an employee's actions. In this case, the department was found to be directly liable because it had a legal duty to protect the plaintiff from the harm suffered and did not discharge that duty.

As such, it is important for employers to consider:

  • the nature of their business and determine whether a special duty of care exists, and to whom that duty may be owed;
  • their recruitment processes to ensure that they vet prospective employees appropriately so that they can demonstrate that they have taken all reasonable measures to protect against harm those to whom such a duty of care may be owed;
  • if candidates for employment have any previous convictions for criminal offences that may impact on their suitability for employment, and to enquire about possible pending criminal charges. If a candidate for employment was previously dismissed, or left their previous employer for no clear reason, the employer should consider investigating the reason for the dismissal or departure, because workplace misconduct that may have resulted in a candidate's departure may not necessarily have constituted a criminal offence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.