The Minister of Police v Underwriters at Lloyds of London

In April 2014 a robbery of approximately R100 million occurred at SBV Services (Pty) Ltd’s Witbank premises. Investigations revealed that several individuals, including two on-duty police officers (Khubeka and Lekola), were involved in planning and executing the robbery. An SBV employee, Ms Gift Nkosi, conspired with the robbers and provided insider information. SBV was insured by Underwriters at Lloyds of London, who indemnified SBV and thereafter took cession of SBV’s and the banks’ claims. The Underwriters instituted a delictual claim against the Minister of Police, alleging vicarious liability for the wrongful conduct of the police officers. Shortly before trial, the Minister sought to amend its plea to introduce a defence based on illegality (ex turpi causa and in pari delicto), contending that SBV was vicariously liable for Ms Nkosi’s conduct and therefore a joint wrongdoer in the robbery. The High Court refused the amendment, and the Minister appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The judgment clarifies the limits of vicarious liability in South African delict law, confirming that an employer cannot be treated as a joint wrongdoer or participant in a delict committed against it by its own employee. It also confirms that defences based on illegality cannot be invoked on a misconceived attribution of fault through vicarious liability, and provides guidance on when proposed amendments to pleadings are excipiable.