Drs Pierre Van Drimmelen & Partners v Hayley Gowar and Others

On 29 December 1994 at approximately 18h30, two collisions occurred on the N1 Highway between Johannesburg and Pretoria near the Buccleuch interchange. In the first collision, a motor vehicle driven by Du Randt (an employee of the appellant) in which the first respondent (a minor and Du Randt's girlfriend) was a passenger, collided with a bridge and/or concrete barrier. Shortly thereafter another vehicle driven by Mr P D Kumpf collided with Du Randt's vehicle. The first respondent sustained bodily injuries. Du Randt was employed as a machine technician by the appellant and had use of the appellant's vehicle for both business and private purposes. On the day of the collisions, Du Randt worked from approximately 08h00 to 17h00. After work, he was asked by Pretorius (senior technician) whether he would work over the New Year's weekend to replace Snyman, in return for a week off. Du Randt said he would check his 'skietprogram' and let them know that evening or the next morning. After leaving work, Du Randt fetched the first respondent from her sister's residence, attended to a machine problem at Marymount Hospital at the request of the second respondent, and was driving towards his home in Pretoria when the collisions occurred. His intention was to go home, wash and change, check his 'skietprogram', communicate his decision to Pretorius and Snyman (who lived nearby), and then go dancing with the first respondent at Club Topaz in Pretoria.

• Whether the appellant was vicariously liable for the negligence of Du Randt, its employee
• Whether Du Randt was acting in the course and scope of his employment with the appellant at the time of the collisions
• Whether an employee's intention to perform an act that might ultimately have a bearing on the employer's business renders the employer liable for delicts committed before performing that act

The orders made by the court a quo were set aside and replaced with the following: (1) It is declared that Du Randt was not acting within the course and scope of his employment with the appellant at the time when the two collisions occurred; (2) The first and second plaintiffs (respondents) and the first and third defendants are ordered to pay the appellant's costs in the court a quo jointly and severally, the one paying the other to be absolved; (3) The first, second and third respondents are ordered to pay the appellant's costs of appeal jointly and severally, the one paying the other to be absolved.

An employee who intends to perform an act for his own personal convenience which might ultimately have a bearing on his employer's business does not per se render his employer vicariously liable for a delict committed by the employee before and even after performing that act. For vicarious liability to be established, the servant must have committed the delict while engaged upon the master's business. An act that is merely 'peripheral' to the employer's business or depends on the employee's own personal discretion and convenience, even if it has some connection to the employer's affairs, will not constitute acting in the course and scope of employment. The determination of whether an act falls within the scope of employment is a question of fact and degree, requiring examination of the employee's dominant purpose at the time of the delict, rather than focusing narrowly on incidental connections to the employer's business. Mere ownership by the employer of the vehicle or instrumentality through which harm was done, even if entrusted to the employee with permission to use it, does not by itself establish vicarious liability.

The court observed that vicarious liability is imposed on innocent employers by a rule of law, and that the rule and the reason for its existence must not be confused. The court noted that in determining the scope of employment one should not look narrowly at the particular act which causes the delict, but rather at the broader context of which the particular act may represent only a part. The court also commented that if a servant hurries from his own personal business in order to return with the least delay to perform his master's work, he is still about his own business alone. The court emphasized that the answer to whether an employer is vicariously liable will depend on a careful analysis of the facts of each case and also considerations of policy.

This case is significant in South African law on vicarious liability as it clarifies the boundaries of an employer's liability for employee conduct. It establishes that an employee's intention to perform an act that might ultimately benefit or relate to the employer's business does not automatically render acts performed before (and even after) that intended act as being within the course and scope of employment. The case reinforces that vicarious liability requires a careful factual analysis of the employee's dominant purpose and actual activities at the time of the delict. It emphasizes that acts 'peripheral' to the employer's business or performed primarily for the employee's personal convenience do not attract vicarious liability, even if they have some connection to employment matters. The judgment provides important guidance on distinguishing between acts done in the course of employment and acts done for personal purposes during or after working hours, particularly where the employee has dual-purpose use of employer's property (such as a vehicle). It demonstrates the application of the principle that ownership of the instrumentality causing harm (e.g., a vehicle) does not per se establish vicarious liability.