CaseNotes LogoCaseNotes
  • Home
  • Library
  • Research
  • Discussion Hub
  • Wiki
  • Latin Dictionary
  • Question Bank
  • Settings
S

Student

Student Account

South African Law • Jurisdictional Corpus
HomeLibraryResearchQuestionsSettings
Judicial Precedent
Ask AI

The Commissioner for the South African Revenue Service and Another v TFN Diamond Cutting Works (Pty) Ltd

CitationCase Number: 070/04 [2005] ZASCA 33
JurisdictionZA
Area of Law
DelictVicarious Liability
Free account

Get the most out of this judgment

Create a free CaseNotes account to save this case, see how it's cited, get an AI summary, and search 10,000+ SA judgments.

Create free accountor sign in
Customs and Excise Law
Employment Law

Facts of the Case

TFN Diamond Cutting Works (Pty) Ltd, a diamond cutting company, purchased rough diamonds in South Africa. On 20 October 2000, its director Mr Glowiczower travelled to New York with a consignment of diamonds that had been sealed by the South African Diamond Board. He sold some diamonds in New York and returned to South Africa on 8 November 2000. Upon arrival at Johannesburg International Airport, he declared the remaining diamonds to customs officials. Due to missing documentation, the diamonds were detained and placed in a sealed plastic pouch in a locked safe within a strongroom at the customs hall. The safe was under the control of customs employees. On 10 November 2000, when proper documentation was presented to secure release of the diamonds, they were discovered missing. Evidence established that Joseph Matshiva, an employee of the Commissioner (SARS), who had custody of the safe keys during his shift, had stolen the diamonds.

Legal Issues

  • Whether the Commissioner/State was vicariously liable for the theft of diamonds by its employee Matshiva when he was entrusted with custody of the safe containing the diamonds
  • Whether the employee's act of theft was committed within the course and scope of his employment
  • Whether section 17(3) of the Customs and Excise Act 91 of 1964 exempted the State from liability for loss of goods in a State warehouse caused by theft by an employee

Judicial Outcome

The appeal was dismissed with costs. The appellants were held jointly and severally liable to the respondent for the loss of its diamonds in such damages as may be agreed or proved.

Ratio Decidendi

An employer is vicariously liable for theft committed by an employee where the employee was entrusted with custody and safeguarding of the stolen property as part of their employment duties. If an employer would be liable for an employee's negligent failure to safeguard entrusted property, it cannot escape liability when the employee acts intentionally (through theft) rather than negligently - both are forms of fault. Section 17(3) of the Customs and Excise Act 91 of 1964, which exempts the State from liability for 'any loss' of goods in a State warehouse, does not encompass loss occasioned by theft by a State employee. Statutory exemptions from liability must be strictly construed and will not be extended to cover situations not expressly stated, particularly where such construction would lead to absurd results such as allowing a thief to benefit from their own wrongdoing.

Obiter Dicta

The court assumed without deciding that the strongroom in the customs hall at Johannesburg International Airport constituted a 'State warehouse' as defined in the Customs and Excise Act. The court noted that the reason for the rule of vicarious liability is often stated to be public policy, with an underlying consideration being that an employer creates a risk of harm to others when work is done through employees who may prove negligent, inefficient or untrustworthy.

Legal Significance

This case is significant in South African law for clarifying the scope of vicarious liability for intentional wrongdoing by employees, particularly theft. It establishes that an employer cannot escape vicarious liability merely because an employee acted intentionally rather than negligently when the wrongful act occurred within the course and scope of employment. The case also provides important guidance on the strict construction of statutory exemptions from liability, confirming that such provisions will not be extended beyond their clear meaning and that absurd results inconsistent with legislative intent must be avoided. The judgment reinforces the principle that where an employee is entrusted with custody of property as part of their employment duties, the employer bears vicarious liability for theft of that property by the employee.

Case Network

Explore 20 related cases • Click to navigate

Current Case
Related Case

Practice This Case

Sign up to practise IRAC analysis, issue spotting, and argument building on this case.

Related Cases

Referenced by

Applied By

  • National Director of Public Prosecutions v David Cunningham King(86/09) [2010] ZASCA 8 (8 March 2010)
  • Gary Patrick Porritt & Susan Hilary Bennett v The National Director of Public Prosecutions & others(978/2013) [2014] ZASCA 168 (21 October 2014)
  • The State v Jacob Gedleyihlekisa Zuma and Thales South Africa (Pty) LtdCase no: CCD30/2018 (KwaZulu-Natal Division, Pietermaritzburg)

Cited By

  • Tshivhulana Royal Family v Netshivhulana[2016] ZACC 47
  • Wycliffe Simiyu Koyabe and Others v Minister for Home Affairs and Others(CCT 53/08) [2009] ZACC 23
  • Ramabele v The State; Msimango v The State[2020] ZACC 22
  • National Credit Regulator v Opperman(CCT 34/12) [2012] ZACC 29
  • National Director of Public Prosecutions v Botha N.O. and Another[2020] ZACC 6
  • Elsie Gundwana v Steko Development CC and Others(CCT 44/10) [2011] ZACC 14
  • Billiton Aluminium SA Ltd t/a Hillside Aluminium v Ntokozo Archibald Khanyile(CCT 72/09) [2010] ZACC 3
  • Jacobus Bogaards v The State(CCT 120/11) [2012] ZACC 23

Followed By

  • Sylla Moussa v The State and The Minister of Justice and Constitutional Development(181/2014) [2015] ZASCA 61 (14 April 2015)

Related To By

  • Schabir Shaik and Others v The State(CCT 86/06) [2008] ZACC 7
  • National Director of Public Prosecutions v Zuma(573/08) [2009] ZASCA 1 (12 January 2009)