Notes: The Exclusion of Vicarious Liability of Employers for the Intentional Unlawful Conduct of their Employees: Fujitsu Services Core (Pty) Ltd v Schenker SA (Pty) Ltd [2023] ZACC 20

Author Karin Calitz

ISSN: 2413-9874
Affiliations: Emeritus Professor, Mercantile Law, Stellenbosch University
Source: Industrial Law Journal, Volume 44 Issue 4, 2023, p. 2162 – 2176


The question whether employers can exclude their vicarious liability for the intentional unlawful conduct of their employees in exemption clauses came to the fore in litigation between Fujitsu and Schenker. The High Court found that Schenker, whose employee stole Fujitsu’s property, was vicariously liable and that it could not be exempted by a widely formulated exemption clause not specifically including theft. The Supreme Court of Appeal and the Constitutional Court held that the exemption clause indeed exempted Schenker from liability. In light of the important policy consideration of deterrence by employers underlying the doctrine of vicarious liability, exempting employers on widely formulated non-specific exemption clauses should be regarded as being against public policy.