When criminals slip through the cracks

Barely a week ago 19-year old UCT student Uyinene Mrwetyana died at the hands of a Post Office employee. It is a tragic event – one, like so many others before it, that shouldn’t have happened. But it comes with a stark warning to employers which can help prevent similar events from occurring.

On 24 August the first-year film and media studies student went to collect a parcel from the Clareinch Post Office. According to news reports, the electricity was out and the accused, a 42-year old male with a previous conviction for robbery, asked her to return later in the day.

When she returned, the accused accosted and allegedly raped her. She was hit with a scale as she fought back. Her body was subsequently dumped in Lingelethu West.

According to media reports, Uyinene’s killer had a previous conviction for robbery. This in itself raises a number of questions:

How did someone with a previous conviction for a violent crime obtain employment at the Post Office? Even if the robbery was committed while he was employed at the Post Office, why weren’t periodic checks in place to verify the continued good standing of the individual in question as well as other Post Office employees?

Or, was the conviction known, but no action was taken to remove the individual in question from contact with the public?

Of course, to accurately answer any of these questions one would need insight into the inner workings of the Post Office HR department, which is unlikely to be made public outside the scope of a well-publicised court case.

Nevertheless, the Post Office could share liability for the actions of its employee.

Vicarious Liability

This type of liability, formally termed ‘vicarious liability’, rests upon the legal maxim “qui facit per alium facit per se”, which translates into English as “he who acts through another, acts himself”.

For vicarious liability to be valid, certain criteria have to be established:

1. Is there an employment relationship?
2. Has a wrongful act been committed?
3. Was the wrongful act committed within the scope of employment?

The ostensible conclusion in this case is that an employer can hardly be held accountable for the actions of an employee, where such actions extend to rape and / or murder as in the case above. But things are seldom as clear cut.

In the case of K v Minister of Safety and Security 2005 6 SA 419 CC, a claim was instituted against the Minister of Safety and Security by a woman who had been raped by three policemen after they offered her a lift. According to the woman, the Minister of Safety and Security shared responsibility for the actions of the three policemen.

It should be taken for granted that three policemen acted entirely in their own interests and not under the instruction of the Minister of Safety and Security. The woman’s claim was dismissed by both the High and Supreme courts.

However the Constitutional Court found that, since the duty of the police is to prevent crime and support the public, it was not unreasonable of the woman to place her trust in them. As such they were found to be in dereliction of duty, which in itself is closely linked to the employer’s business. Therefore the minister was found to be vicariously liable.

So can the Post Office be held liable for the actions of its employee? Unfortunately there are too few details to make any informed assumption.

But, if anything, the warning to businesses everywhere is stark: know who you’re hiring and, equally important, know who they are after you’ve hired them – not only to protect your own interests, but those of the public too.