Sexual Harassment in the Workplace in South Africa: The Unlimited Vicarious Liability of Employers?

The South African Supreme Court of Appeal and Constitutional Court have ruled that the employer is vicariously liable for sexual violence perpetrated by his employee on a co-employee or on a third party in the workplace or in what can be considered as an extension of the workplace. This is similar to the current position in the United Kingdom. This article questions the rationale of holding employers vicariously liable for intentional acts of employees such as sexual harassment. In a bid to justify their position, these courts have adopted a sort of vicarious liability with no outer limit that is both needless and tortuous. This article submits that the law imposes a duty on employers to protect their employees and that this unwarranted development of vicarious liability could be avoided if due regard is given to the prescribed direct (and strict) liability of the employer.