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[2005] ZACC 8
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K v Minister of Safety and Security (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC) ; [2005] 8 BLLR 749 (CC); (2005) 26 ILJ 1205 (CC) (13 June 2005)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
52/04
N K Applicant
versus
MINISTER OF SAFETY AND
SECURITY Respondent
Heard on : 10 May 2005
Decided on : 13 June
2005
JUDGMENT
O’REGAN J:
This is an
application for leave to appeal against a judgment of the Supreme
Court of Appeal. Ms N K, the applicant, seeks damages
in delict
from the Minister of Safety and Security, the respondent, on the
basis that she was raped by three uniformed and on-duty
policemen
after she had accepted a lift home from them when she found herself
effectively stranded in the early hours of the
morning. The case
raises the scope of the vicarious liability of the Minister of
Safety and Security under our law. Both the
High Court and the
Supreme Court of Appeal dismissed Ms K’s claim on the grounds
that the respondent was not vicariously liable
for the conduct of
the policemen which had caused the harm to Ms K.
The facts
The parties
agreed to a statement of facts and so no evidence was led in the
High Court. According to that statement, on 26 March
1999, Ms K
who was then just 20 years old, had a date with a boyfriend at the
Bundu Inn. The arrangement was that he would take
her home at the
end of the evening. At midnight, when the Inn closed, they chose
to go to another bar. There a former girlfriend
of her companion
turned up and an argument broke out between Ms K and her companion.
Shortly after, she asked him to take her
home but he refused and
she decided to find a telephone to call her mother to collect her.
There was no phone at the bar and
she decided to walk to a nearby
petrol station. It was now approximately 4 am.
At the petrol station, the attendant informed her that the phone
could not be used for outgoing calls. She did not accept this
and
begged him to let her use the telephone. At that time, a car drew
up and a policeman in full uniform came into the shop.
The
policeman, Sergeant Nathaniel Rammutle, was the driver of the car
which was an official South African Police Service vehicle.

Sergeant Rammutle approached Ms K and, according to the agreed
statement, addressed her in fluent Afrikaans to ask where she
was
going. She answered that she really wanted to go home and he
offered to take her there. She accepted his offer and climbed
into
the car in which there were two other policemen, Sergeant Ephraim
Gabaatlholwe and Sergeant Edwin Nqandela who were also
both in
uniform. All of the policemen were on duty at the time. She did
not know any of the policemen.
They started
in the direction of her home. Ms K did not speak to them, but they
spoke amongst themselves in a language she did
not understand. She
fell asleep for a short while. When she awoke, the car took a turn
in the wrong direction. She immediately
said to the driver that it
was the wrong direction. But the policemen immediately told her to
be quiet and a policeman’s jacket
was thrown over her head and
held tight. She began to kick and scream and to ask what was
happening, but the jacket was held
tight and she was instructed to
keep quiet. She struggled unsuccessfully to free herself. The
jacket was pulled tighter and
tighter over her head until she was
struggling to breathe. She then begged the policemen to remove the
jacket but she was punched
sharply in the stomach and told that she
would be killed if she did not stay quiet. Thereafter the car came
to a halt.
According to
the agreed statement of facts, the applicant was then forced onto
the back seat of the car, her denim jeans, underwear,
socks and
shoes were removed and she was raped by the three policemen in
turn. She continued to struggle to no avail. After
raping her,
the policemen put some of her clothing back on her, and helped her
out of the car. The police jacket was still held
over her head.
She was then thrown on the ground, the jacket removed and the three
men climbed back into the vehicle which raced
away.
Looking around
her, she realised she was in some bushes but did not know where she
was precisely. She was hysterical and began
to run. She soon
realised that she was near her home and ran there, where she found
her mother. A charge of rape was laid and
the three policemen were
arrested, charged and convicted of rape and kidnapping on 25 May
2000 in the Johannesburg High Court.
They were sentenced to life
imprisonment for rape and ten years’ imprisonment for kidnapping.
They are still serving their
sentences.
It was admitted by the Minister that as policemen who were on duty,
the three policemen had a general duty to ensure the safety
of
members of the public and to prevent crime. It was also accepted
by both parties that the three policemen were aware of the
provisions of section 10(1) of Special Force Order 3(A) of 1987 of
the South African Police Services which prohibits the transport
of
unauthorised passengers in police vehicles. According to the
standing order, the following passengers may be transported:
persons who have been arrested; awaiting trial prisoners; sentenced
prisoners; state witnesses; defence witnesses in certain
circumstances; and people who, in the interests of the state, are
assisting the police to carry out their official duties such
as
doctors.
1
According to the standing order, there is a further category of
persons who may be transported ─
“
(aa) where a policeman
encounters a collision or breakdown and there are persons who have
sustained injuries or who are stranded,
2
he may, if necessary, use the government-owned vehicle to convey the
injured, who may safely be moved together with their private
property, free of charge, to a hospital or doctor on his authorised
route, or to convey the persons who are stranded and their
private
property, free of charge, to an hotel or other place on his
authorised route.
(bb) The names, residential
addresses and the registration numbers of the vehicles of persons so
conveyed must be entered in the
vehicle register (SAP 132(b)).
(cc) Although the State is
indemnified by section 32 bis of Act 7 of 1958, it must, where at
all possible, be explained to persons
conveyed in accordance with
sub-paragraph (1)(c)(vii) that they are being conveyed at their own
risk.” (footnote added)
Proceedings in
the High Court and Supreme Court of Appeal
Ms K
instituted proceedings in the Johannesburg High Court against the
respondent, as well as the three policemen, for damages
arising
from the conduct of the policemen in the early morning of 27 March
1999. She subsequently abandoned the claim against
the three
policemen who were in prison and unlikely to be able to pay any
damages awarded against them. The remaining two parties
agreed
that the issue of the liability of the Minister should be
determined first and that the quantum of damages investigation
should await the outcome of that determination. The High Court
dismissed Ms K’s claim but granted her leave to appeal to the
Supreme Court of Appeal.
The Supreme
Court of Appeal dismissed the appeal. It held that on the existing
principles of vicarious liability the respondent
was not liable for
the damages suffered by Ms K. Scott JA for a unanimous Court
reasoned as follows ─
“
The legal principles
underlying vicarious responsibility are well-established. An
employer, whether a Minister of State or otherwise,
will be
vicariously liable for the delict of an employee if the delict is
committed by the employee in the course and scope of
his or her
employment. Difficulty frequently arises in the application of the
rule, particularly in so-called ‘deviation’
cases. But the
test, commonly referred to as the ‘standard test’, has been
repeatedly applied by this Court. Where there
is a deviation the
inquiry, in short, is whether the deviation was of such a degree
that it can be said that in doing what he or
she did the employee
was still exercising the functions to which he or she was appointed
or was still carrying out some instruction
of his or her employer.
If the answer is yes, the employer will be liable no matter how
badly or dishonestly or negligently those
functions or instructions
were being exercised by the employee.”
3
The Court held that
on this test the Minister could not be held liable for the rape of
the applicant. The Court also rejected arguments
that the
common-law rule should be developed in the light of the spirit,
purport and objects of the Constitution and an argument
that the
Minister was liable because at the time of the rape, the policemen
were simultaneously failing to perform their duty to
protect the
applicant. In ending, Scott JA noted that he had the “deepest
sympathy for the appellant” but held that providing
her with
compensation was a matter for the Legislature and not the courts.
4
The applicant
now seeks leave to appeal to this Court.
The application
for leave to appeal
The applicant
bases her appeal on three arguments: the first is that the Supreme
Court of Appeal erred in its application of the
standard,
common-law test for vicarious liability; the second is that if the
Supreme Court of Appeal did not err in its application
of the test,
that test should be developed in the light of section 39(2) of the
Constitution as the result does not accord with
the spirit, purport
and objects of the Constitution. The third argument is that the
state should be held directly liable for
its failure to protect Ms
K from harm. The respondent opposes the application for leave to
appeal.
A
constitutional issue?
The first
question that arises is whether the matter raises a constitutional
issue. The respondent argues that it does not, at
least to the
extent that the case concerns the application of the principles of
vicarious liability. It relies on this Court’s
judgment in
Phoebus Apollo Aviation CC v Minister of Safety and Security
.
5
In that case the appellant had sought to hold the Minister of
Safety and Security liable in delict for damages arising from
the
theft by certain policemen of property of the appellant. It was
common cause that the appellant was robbed of a large sum
of money
by an armed gang. The investigating officer traced the proceeds of
the robbery but when he arrived he discovered that
the money had
already been taken by three dishonest policemen. It was not clear
where these three policemen had come by the
information concerning
the location of the stolen money, but it was clear that they had
not been responsible for the investigation
of the robbery, nor had
they been on duty when they went to recover it, nor had they been
in uniform although they had induced
the man guarding the money to
hand it over because they were policemen.
The appellant
in that case did not argue either that the rules of vicarious
liability were in conflict with the Constitution or
that they
failed to give effect to the spirit, purport and objects of the
Bill of Rights. In the light of this and on the facts
of the case,
the Court accordingly concluded that the matter did not raise a
constitutional issue and dismissed the appeal.
In doing so,
Kriegler J on behalf of a unanimous court made the following
remarks upon which the respondent relied ─
“
It is not suggested that in
determining the question of vicarious liability the SCA applied any
principle which is inconsistent
with the Constitution. Nor is there
any suggestion that any such principle needs to be adapted or
evolved to bring it into harmony
with the spirit, purport or objects
of the Bill of Rights. On the contrary, counsel for the appellant
expressly conceded that
the common-law test for vicarious liability,
as it stands, is consistent with the Constitution. It has long been
accepted that
the application of this test to the facts of a
particular case is not a question of law but one of fact, pure and
simple. The
thrust of the argument presented on behalf of the
appellant was essentially that though the SCA has set the correct
test, it had
applied that test incorrectly ─ which is of course
not ordinarily a constitutional issue. This Court’s jurisdiction
is confined
to constitutional matters and issues connected with
decisions on constitutional matters. It is not for it to agree or
disagree
with the manner in which the SCA applied a constitutionally
acceptable common-law test to the facts of the present case.”
6
(footnotes omitted)
In this case,
however, both before this Court and the Supreme Court of Appeal,
counsel for the applicant have contended that if,
on a proper
application of the ordinary common-law rule of vicarious liability,
the state is not liable for the applicant’s
damages, then that
rule should be developed. In developing the rule, the argument
goes, the Court should consider the applicant’s
constitutional
right to freedom and security of the person, and in particular, the
right to be free from all forms of violence
from either public or
private sources
7
as well as her right to dignity,
8
right to privacy
9
and right to substantive equality.
10
The applicant’s argument was quite different, therefore, from
the argument levelled in
Phoebus Apollo
. It is an argument,
albeit in the alternative, that the common-law rule of vicarious
liability should be developed to render
it consistent with the
spirit, purport and objects of the Bill of Rights, and in
particular to vindicate the applicant’s constitutional
rights and
provide a remedy to correspond to the respondent’s alleged
constitutional duties. I conclude, therefore, that the
respondent
is not aided by its reliance on the judgment in
Phoebus Apollo
.
Our Constitution requires a court when developing the common law to
promote the spirit, purport and objects of the Constitution.
11
The pervasive normative effect of our Constitution was
acknowledged by this Court in
Carmichele v Minister of Safety
and Security and Another
12
where it held that ─
“
Our Constitution is not
merely a formal document regulating public power. It also embodies,
like the German Constitution, an objective,
normative value system.
As was stated by the German Federal Constitutional Court:
‘
The jurisprudence of the
Federal Constitutional Court is consistently to the effect that the
basic right norms contain not only
defensive subjective rights for
the individual but embody at the same time an objective value system
which, as a fundamental constitutional
value for all areas of the
law, acts as a guiding principle and stimulus for the Legislature,
Executive and Judiciary.’
The same is true of our
Constitution. The influence of the fundamental constitutional
values on the common law is mandated by s
39(2) of the Constitution.
It is within the matrix of this objective normative value system
that the common law must be developed.”
(footnotes omitted)
In addition to
section 39(2) of the Constitution, section 8 of the Bill of Rights
makes it plain that the judiciary is bound by
the provisions of the
Bill of Rights in the performance of its functions.
13
The cumulative effect of these constitutional provisions is to
create an expressly normative legal system founded on the norms
articulated in our Constitution.
Section 39(2)
of the Constitution requires courts when developing the common law
to promote the spirit, purport and objects of
the Bill of Rights.
In
S v Thebus and Another
,
14
Moseneke J noted that there were at least two instances in which
the need to develop the common law under section 39(2) of the
Constitution could arise.
“
The first would be when a
rule of the common law is inconsistent with a constitutional
provision. Repugnancy of this kind would
compel an adaptation of
the common law to resolve the inconsistency. The second possibility
arises even when a rule of the common
law is not inconsistent with a
specific constitutional provision but may fall short of its spirit,
purport and objects. Then,
the common law must be adapted so that
it grows in harmony with the ‘objective normative value system’
found in the Constitution.”
(footnotes omitted)
It is necessary to
consider the difficult question of what constitutes “development”
of the common law for the purposes of section
39(2). In considering
this, we need to bear in mind that the common law develops
incrementally through the rules of precedent.
The rules of
precedent enshrine a fundamental principle of justice: that like
cases should be determined alike. From time to
time, a common-law
rule is changed altogether, or a new rule is introduced, and this
clearly constitutes the development of the
common law. More
commonly, however, courts decide cases within the framework of an
existing rule. There are at least two possibilities
in such cases:
firstly, a court may merely have to apply the rule to a set of facts
which it is clear fall within the terms of
the rule or existing
authority. The rule is then not developed but merely applied to
facts bound by the rule. Secondly, however,
a court may have to
determine whether a new set of facts falls within or beyond the
scope of an existing rule. The precise ambit
of each rule is
therefore clarified in relation to each new set of facts. A court
faced with a new set of facts, not on all fours
with any set of
facts previously adjudicated, must decide whether a common-law rule
applies to this new factual situation or not.
If it holds that the
new set of facts falls within the rule, the ambit of the rule is
extended. If it holds that it does not,
the ambit of the rule is
restricted, not extended.
The question
we should consider is whether one characterises such cases as
development of the common law for the purposes of section
39(2).
The overall purpose of section 39(2) is to ensure that our common
law is infused with the values of the Constitution.
It is not only
in cases where existing rules are clearly inconsistent with the
Constitution that such an infusion is required.
The normative
influence of the Constitution must be felt throughout the common
law. Courts making decisions which involve the
incremental
development of the rules of the common law in cases where the
values of the Constitution are relevant are therefore
also bound by
the terms of section 39(2). The obligation imposed upon courts by
section 39(2) of the Constitution is thus extensive,
requiring
courts to be alert to the normative framework of the Constitution
not only when some startling new development of the
common law is
in issue, but in all cases where the incremental development of the
rule is in issue.
In this case,
the applicant argues that the Supreme Court of Appeal’s
conclusion that the principles of vicarious liability
do not render
the respondent liable in this case is inconsistent with the spirit,
purport and objects of the Bill of Rights and
that the principles
of vicarious liability therefore need to be developed to hold the
respondent liable. This argument raises
a constitutional issue.
The question of the protection of Ms K’s rights to security of
the person, dignity, privacy and substantive
equality are of
profound constitutional importance. In addition, it is clear and
it was conceded by the respondent that it was
part of the three
policemen’s work to ensure the safety and security of all South
Africans and to prevent crime. These obligations
arise from the
Constitution
15
and are affirmed by the Police Act.
16
In the light of these obligations,
17
the Court said in
Carmichele
─
“
In addressing these
obligations in relation to dignity and the freedom and security of
the person, few things can be more important
to women than freedom
from the threat of sexual violence. As it was put by counsel on
behalf of the
amicus curiae:
‘
Sexual violence and the
threat of sexual violence goes to the core of women’s
subordination in society. It is the single greatest
threat to the
self-determination of South African women.’
. . . .
South Africa also has a duty
under international law to prohibit all gender-based discrimination
that has the effect or purpose
of impairing the enjoyment by women
of fundamental rights and freedoms and to take reasonable and
appropriate measures to prevent
the violation of those rights. The
police is one of the primary agencies of the State responsible for
the protection of the public
in general and women and children in
particular against the invasion of their fundamental rights by
perpetrators of violent crime.”
18
(footnotes omitted)
These comments
are of equal importance in the present case. I am prepared to
accept for the purposes of the discussion at hand
that the Supreme
Court of Appeal was correct in reasoning that the issue of
wrongfulness in delict is not at issue in this case
as it was in
Carmichele
.
19
The fact that the Court is concerned with a different aspect of
the law of delict, the one pertaining to vicarious liability,
does
not mean that questions of constitutional rights cannot arise. The
obligations imposed upon courts by sections 8(1) and
39(2) of the
Constitution are not applicable only to the criterion of
wrongfulness in the law of delict. In considering the
common-law
principles of vicarious liability, and the question of whether that
law needs to be developed in that area, the normative
influence of
the Constitution must be considered.
One last thing
needs be mentioned here concerning
Phoebus Apollo
. The
respondent sought to argue that this Court has no jurisdiction to
consider the application of the principles of vicarious
liability
in this case. It based that argument on the dictum of Kriegler J
in
Phoebus Apollo
that the application of the principles of
vicarious liability to a particular situation had always been
considered to be a matter
of fact. The argument overstates the
reasoning in
Phoebus Apollo
which, first, records that the
courts have traditionally viewed the common-law approach to
vicarious liability to raise a factual
question; and secondly,
restates the principle that the application of law to facts, in
itself, does not ordinarily raise a constitutional
issue. For it
to do so, some separate constitutional issue beyond the factual
question must be raised. In that case, the appellant
had sought to
rely erroneously on the property clause, an argument the Court
dismissed, but did not argue that the common-law
rule of vicarious
liability needed reconsideration. It was not necessary therefore
for this Court to consider in
Phoebus Apollo
whether the
principle that the application of the rule of vicarious liability
concerned only a question of fact needed to be
reconsidered in the
light of the demands of the Constitution. In this case, on the
other hand, the sharp issue of the constitutionality
of the
common-law rule is in issue. The question of whether the
application of the principles of vicarious liability to a set
of
facts can properly be termed purely factual is a matter to which I
now turn.
The application
of the common-law principles of vicarious liability — purely a
factual question?
The common-law principles of vicarious liability hold an employer
liable for the delicts committed by its employees where the
employees are acting in the course and scope of their duty as
employees. The principles ascribe liability to an employer where
its employees have committed a wrong but where the employer is not
at fault. As such, the principles are at odds with a basic
norm of
our society that liability for harm should rest on fault, whether
in the form of negligence or intent. This tension
between our
ordinary rules for delictual liability and the special case of
vicarious liability is often discussed in judicial
decisions
20
and academic writing.
21
The rationale for vicarious liability is to be found in a range of
underlying principles. An important one is the desirability
of
affording claimants efficacious remedies for harm suffered.
Another is the need to use legal remedies to incite employers
to
take active steps to prevent their employees from harming members
of the broader community.
22
There is a countervailing principle too, which is that damages
should not be borne by employers in all circumstances, but only
in
those circumstances in which it is fair to require them to do so.
Despite the policy-laden character of vicarious liability, our
courts have often asserted, though not without exception,
23
that the common-law principles of vicarious liability are not to be
confused with the reasons for them,
24
and that their application remains a matter of fact.
25
If one looks at the principle of vicarious liability through the
prism of section 39(2) of the Constitution, one realises that
characterising the application of the common-law principles of
vicarious liability as a matter of fact untrammelled by any

considerations of law or normative principle cannot be correct.
Such an approach appears to be seeking to sterilise the common-law
test for vicarious liability and purge it of any normative or
social or economic considerations. Given the clear policy basis
of
the rule as well as the fact that it is a rule developed and
applied by the courts themselves, such an approach cannot be
sustained under our new constitutional order. This is not to say
that there are no circumstances where rules may be applied
without
consideration of their normative content or social impact. Such
circumstances may exist. What is clear, however, is
that as a
matter of law and social regulation, the principles of vicarious
liability are principles which are imbued with social
policy and
normative content.
26
Their application will always be difficult and will require what
may be troublesome lines to be drawn by courts applying them.
Denying that the principles bear such normative implications will
only bedevil the exercise by rendering inarticulate, premises
that
in a democracy committed to openness, responsiveness and
accountability
27
should be articulated. To this extent, at least, therefore, the
principles of vicarious liability and their application needs
to be
developed to accord more fully with the spirit, purport and objects
of the Constitution. This conclusion, however, should
not be
misunderstood to mean anything more than that the existing
principles of common-law vicarious liability must be understood
and
applied within the normative framework of our Constitution, and the
social and economic purposes which they seek to pursue.
Nor does
this conclusion mean that an employer will be saddled with damages
simply because injuries might be horrendous. Rather,
it implies
that the courts, bearing in mind the values the Constitution seeks
to promote, will decide whether the case before
it is of the kind
which in principle should render the employer liable. Whether the
principles of vicarious liability themselves,
as currently applied
by the courts, require development beyond an acceptance of the
normative character of their provenance and
application will be
considered later. I turn now to consider the existing principles
of vicarious liability.
The common-law
principles of vicarious liability
The general principle of vicarious liability holds an employer
responsible for the wrongs committed by an employee during the
course of employment. The courts have held that as long as the
employee is acting “within the course and scope of his or her
duty”
28
or is “engaged with the affairs of his master” that the
employer will be liable.
29
The principle of vicarious liability is not peculiar to our common
law, but is also to be found in customary law rules.
30
It is clear, therefore, that there is a deep-seated sense of
justice that is served by the notion that in certain circumstances
a person in authority will be held liable to a third party for
injuries caused by a person falling under his or her authority.
Many cases are
straightforward. However, difficulties arise when the delict is
committed in the course of a deviation from the
normal performance
of an employee’s duties. The question the courts have to answer
is whether the employee is still acting
within the course and scope
of his or her duty or is still engaged with the affairs of the
employer. The difficulty is particularly
pronounced where the
deviation itself is intentional and even more pronounced where the
deviation constitutes an intentional
wrong, such as in the present
case.
It is clear
that an intentional deviation from duty does not automatically mean
that an employer will not be liable. In the early
leading case of
Feldman v Mall
,
31
a driver of the appellant’s vehicle had, after delivering the
parcels he had been instructed to deliver, driven to attend to
some
personal matters of his own during which time he consumed enough
beer to render him unable to drive the vehicle safely.
On his way
back to his employer’s garage, he negligently collided with and
killed the father of two minor children. The case
concerned a
dependant’s claim for damages and the Court, by a majority, held
the employer to be vicariously liable.
In his judgment holding the employer liable, Watermeyer CJ captured
the test for vicarious liability in deviation cases as follows
─
“
If an unfaithful servant,
instead of devoting his time to his master’s service, follows a
pursuit of his own, a variety of situations
may arise having
different legal consequences.
(a) If he abandons his
master’s work entirely in order to devote his time to his own
affairs then his master may or may not,
according to the
circumstances, be liable for harm which he causes to third parties.
If the servant’s abandonment of his master’s
work amounts to
mismanagement of it or negligence in its performance and is, in
itself, the cause of harm to third parties, then
the master will
naturally be legally responsible for that harm; there are several
English cases which illustrate this situation
and I shall presently
refer to some of them. If, on the other hand, the harm to a third
party is not caused by the servant’s
abandonment of his master’s
work but by his activities in his own affairs, unconnected with
those of his master, then the master
will not be responsible.
(b) If he does not abandon
his master’s work entirely but continues partially to do it and at
the same time to devote his attention
to his own affairs, then the
master is legally responsible for harm caused to a third party which
may fairly, in a substantial
degree, be attributed to an improper
execution by the servant of his master’s work, and not entirely to
an improper management
by the servant of his own affairs.”
32
In a later passage
in the judgment, Watermeyer CJ continued as follows ─
“
This qualification is
necessary because the servant, while on his frolic may at the same
time be doing his master’s work and also
because a servant’s
indulgence in a frolic may in itself constitute a neglect to perform
his master’s work properly, and may
be the cause of the damage.”
33
Watermeyer CJ
explained the reason for the rule as follows ─
“
I have gone into this
question more fully than seems necessary, in the hope that the
reasons which have been advanced for the imposition
of vicarious
liability upon a master may give some indication of the limits of a
master’s legal responsibility, and the reasons
are to some extent
helpful. It appears from them that a master who does his work by
the hand of a servant creates a risk of harm
to others if the
servant should prove to be negligent or inefficient or
untrustworthy; that, because he has created this risk for
his own
ends he is under a duty to ensure that no one is injured by the
servant’s improper conduct or negligence in carrying
on his work
and that the mere giving by him of directions or orders to his
servant is not a sufficient performance of that duty.
It follows
that if the servant’s acts in doing his master’s work or his
activities incidental to or connected with it are
carried out in a
negligent or improper manner so as to cause harm to a third party
the master is responsible for that harm.”
34
Tindall JA
formulated the approach in slightly different terms ─
“
In my view the test to be
applied is whether the circumstances of the particular case show
that the servant’s digression is so
great in respect of space and
time that it cannot reasonably be held that he is still exercising
the functions to which he was
appointed; if this is the case the
master is not liable. It seems to me not practicable to formulate
the test in more precise terms;
I can see no escape from the
conclusion that ultimately the question resolves itself into one of
degree and in each particular
case a matter of degree will determine
whether the servant can be said to have ceased to exercise the
functions to which he was
appointed.”
35
In subsequent cases the approaches advocated by Watermeyer CJ and
Tindall JA and concurred in by Fischer AJA in
Feldman
’s
case were held to constitute the majority judgment of the Court.
36
Both judgments have been repeatedly cited in subsequent cases
37
and variations of the approach suggested have been adopted and
applied.
In
Minister
of Police v Rabie
,
38
the Appellate Division had to consider a claim for damages arising
from the wrongful arrest, detention and assault of the plaintiff.

The member of the police force who had made the arrest was a
mechanic, in plain clothes and not on duty at the time. In making
the arrest he had acted in pursuance of his own interests. He had
however identified himself as a policeman to the plaintiff,
taken
the plaintiff to the police station, filled out a docket and
wrongfully charged the plaintiff with attempted housebreaking.
The
case thus concerned the clear deviation of an employee from the
ordinary tasks of his employment. The question was whether
his
employer, the Minister of Police, was vicariously liable for the
damages suffered by the plaintiff. Jansen JA, for the majority
of
the Court holding the Minister liable, formulated a test for
determining vicarious liability in such cases, which has since
been
applied in many cases. He reasoned as follows ─
“
It seems clear that an act
done by a servant solely for his own interests and purposes,
although occasioned by his employment, may
fall outside the course
or scope of his employment, and that in deciding whether an act by
the servant does so fall, some reference
is to be made to the
servant’s intention (cf
Estate Van der Byl v Swanepoel
1927
AD 141
at 150). The test is in this regard subjective. On the
other hand, if there is nevertheless a sufficiently close link
between
the servant’s acts for his own interests and purposes and
the business of his master, the master may yet be liable. This is

an objective test.”
39
The approach
makes it clear that there are two questions to be asked. The first
is whether the wrongful acts were done solely
for the purposes of
the employee. This question requires a subjective consideration of
the employee’s state of mind and is
a purely factual question.
Even if it is answered in the affirmative, however, the employer
may nevertheless be liable vicariously
if the second question, an
objective one, is answered affirmatively. That question is
whether, even though the acts done have
been done solely for the
purpose of the employee, there is nevertheless a sufficiently close
link between the employee’s acts
for his own interests and the
purposes and the business of the employer. This question does not
raise purely factual questions,
but mixed questions of fact and
law. The questions of law it raises relate to what is
“sufficiently close” to give rise
to vicarious liability.
40
It is in answering this question that a court should consider the
need to give effect to the spirit, purport and objects of
the Bill
of Rights.
It is
instructive to note, however, that the test applied in
Rabie
although frequently applied, has not always been followed. Indeed,
in this case, the Supreme Court of Appeal formulated the
test
somewhat differently to the
Rabie
test. It said that the
question to be asked is whether the deviation is of such a degree
that it can be said the employee is
still exercising the functions
to which he or she was appointed or still carrying out some
instruction of the employer. Variations
of the test have
proliferated, and have resulted in uncertainty.
41
In my view, this is unsatisfactory. I shall return to the
question of what the rule that should govern vicarious liability
should be later in the judgment. First, it will be helpful to
consider briefly the doctrine of vicarious liability as it has
developed in other jurisdictions.
The law of
vicarious liability in other jurisdictions
As noted
above, it is not only our law that has struggled to determine the
proper ambit of the principles of vicarious liability
and to apply
them in a manner that is both consistent and fair. There can be no
doubt that it will often be helpful for our
courts to consider the
approach of other jurisdictions to problems that may be similar to
our own. Counsel for the respondent
argued that because our
common-law principles of delict grew from the system of Roman-Dutch
law applied in Holland, a province
of the Netherlands, in the 17
th
century, we should not have regard to judgments or reasoning of
other legal systems. He submitted that the conceptual nature
of
our law of delict, based as it is on general principles of
liability, is different from the casuistic character of the law
of
torts in common-law countries. These differences, he submitted,
render reliance on such law dangerous. Counsel is correct
in
drawing our attention to the different conceptual bases of our law
and other legal systems. As in all exercises in legal
comparativism, it is important to be astute not to equate legal
institutions which are not, in truth, comparable.
42
Yet in my view, the approach of other legal systems remains of
relevance to us.
It would seem
unduly parochial to consider that no guidance, whether positive or
negative, could be drawn from other legal systems’
grappling with
issues similar to those with which we are confronted.
Consideration of the responses of other legal systems may
enlighten
us in analysing our own law, and assist us in developing it
further. It is for this very reason that our Constitution
contains
an express provision authorising courts to consider the law of
other countries when interpreting the Bill of Rights.
43
It is clear that in looking to the jurisprudence of other
countries, all the dangers of shallow comparativism must be
avoided.
To forbid any comparative review because of those risks,
however, would be to deprive our legal system of the benefits of
the
learning and wisdom to be found in other jurisdictions. Our
courts will look at other jurisdictions for enlightenment and
assistance
in developing our own law. The question of whether we
will find assistance will depend on whether the jurisprudence
considered
is of itself valuable and persuasive. If it is, the
courts and our law will benefit. If it is not, the courts will say
so,
and no harm will be done.
In the recent
House of Lords decision,
Lister v Hesley Hall
,
44
the plaintiffs, who had been boarders at a private school for
boys, were sexually abused by the warden in charge of the school’s
hostel. The school was held vicariously liable for the conduct of
the warden even though it was clear that it constituted a
gross
deviation from his duties. The test established by Lord Steyn,
after a careful consideration of the authorities, was whether
the
torts “were so closely connected with [the warden’s] employment
that it would be fair and just to hold the employers
vicariously
liable.”
45
Lord Millett reasoned as follows ─
“
The school was responsible
for the care and welfare of the boys. It entrusted that
responsibility to the warden. He was employed
to discharge the
school’s responsibility to the boys. For this purpose the school
entrusted them to his care. He did not merely
take advantage of the
opportunity which employment at a residential school gave him. He
abused the special position in which the
school had placed him to
enable it to discharge its own responsibilities, with the result
that the assaults were committed by the
very employee to whom the
school had entrusted the care of the boys. . . . I would hold the
school liable.”
46
In each of
their speeches, the Law Lords held therefore that although the
conduct of the warden had been clearly a gross deviation,
the
conduct itself was sufficiently closely related to the obligations
borne by the employer in respect of the children who were
abused to
render the employer liable.
Similar issues
have arisen in Canada and were considered by the Supreme Court in
two judgments handed down on the same day,
Bazley v Curry
47
and
Jacobi v Griffiths
.
48
Both cases concerned the vicarious liability of employers for the
sexual assaults of their employees on children within their
care.
In a comprehensive and careful review not only of the existing
legal principles, but also of the policy that underlies
the
doctrine of vicarious liability, McLachlin J in
Bazley’s
case
concluded that the proper approach to determining vicarious
liability in these cases is the following ─
“
[C]ourts should be guided by
the following principles:
(1) They should openly confront
the question of whether liability should lie against the employer,
rather than obscuring the decision
beneath semantic discussions of
‘scope of employment’ and ‘mode of conduct’.
(2) The fundamental question is
whether the wrongful act is
sufficiently related
to conduct
authorized by the employer to justify the imposition of vicarious
liability. Vicarious liability is generally appropriate
where there
is a significant connection between the
creation or enhancement
of a risk
and the wrong that accrues therefrom, even if
unrelated to the employer’s desires. Where this is so, vicarious
liability will
serve the policy considerations of provision of an
adequate and just remedy and deterrence. Incidental connections to
the employment
enterprise, like time and place (without more), will
not suffice.
. . . .
(3) In determining the
sufficiency of the connection between
the employer’s creation
or enhancement of the risk
and the wrong complained of,
subsidiary factors may be considered. These may vary with the
nature of the case. When related to
intentional torts, the relevant
factors may include, but are not limited to, the following:
(a) the opportunity that the
enterprise afforded the employee to abuse his or her power;
(b) the extent to which the
wrongful act may have furthered the employer’s aims (and hence be
more likely to have been committed
by the employee);
(c) the extent to which the
wrongful act was related to friction, confrontation or intimacy
inherent in the employer’s enterprise;
(d) the extent of power
conferred on the employee in relation to the victim;
(e) the vulnerability of
potential victims to wrongful exercise of the employee’s power.”
49
(emphasis in original)
This was a
unanimous judgment of the Supreme Court of Canada holding a
non-profit foundation vicariously liable for the conduct
of one of
its employees. The foundation had operated a children’s
residential care facility and the employee had been employed
as a
“substitute parent”. The employee had sexually abused the
children in his care. The Court held that –
“
[t]he opportunity for
intimate private control and the parental relationship and power
required by the terms of employment created
the special environment
that nurtured and brought to fruition [the employee’s] sexual
abuse. The employer’s enterprise created
and fostered the risk
that led to the ultimate harm. The abuse was not a mere accident of
time and place, but the product of the
special relationship of
intimacy and respect the employer fostered, as well as the special
opportunities for exploitation of that
relationship it furnished.
Indeed, it is difficult to imagine a job with a greater risk for
child sexual abuse. This is not to
suggest that future cases must
rise to the same level to impose vicarious liability. Fairness and
the need for deterrence in this
critical area of human conduct –
the care of vulnerable children – suggest that as between the
Foundation that created and
managed the risk and the innocent
victim, the Foundation should bear the loss.”
50
In
Jacobi
,
however, which also concerned the vicarious liability of an
employer for the sexual abuse of children by an employee, the Court
split and a majority held that on the test set in
Bazley
,
the employer was not liable on the facts of that case. In that
case, an employee of a non-profit organisation which organised
group recreational facilities for children had abused children by
enticing them outside of club activities outside of club hours
to
his home where he had abused them. The majority of the Court held
that the activities of the employer were not sufficiently
connected
to the wrongs performed by the employee to result in the vicarious
liability of the employer.
The respondent relied heavily on the United States case of
Primeaux
v United States
51
which it said was the only foreign case to be directly
comparable on the facts to the case under consideration here. In
that
case, decided by the US Court of Appeals for the Eighth
Circuit, an off-duty police officer returning from a work seminar
in
his government vehicle in the early hours of one morning
encountered a woman walking along the road. She had abandoned her
car
because it was stuck in a snow-drift. He offered her a lift
and then drove to a side road where he raped her. The question of
the vicarious liability of the employer is governed in the US by
the provisions of the Federal Tort Claims Act
52
in terms of which the government is liable if the employee was
acting within the scope of his office or employment. A majority
of
the Court held, treating the question of whether the police officer
was acting within the course and scope of his duty as
a mixed
question of fact and law, that ─
“
. . . recent cases from
other jurisdictions have concluded it is sufficiently foreseeable to
a government employer that on-duty
police officers will occasionally
misuse their authority to sexually assault detainees. But this case
is far different. The connection
between Officer Scott’s
government employment and his sexual assault of Primeaux was simply
too remote and tenuous to be foreseeable
to his employer.”
53
In reaching this
conclusion, the Court emphasised that the officer was “unarmed,
out of uniform, and off duty, insofar as his
law enforcement
responsibilities were concerned.”
54
However, it is
important in considering this case to record that nearly half the
court dissented (the court split 6:5) and the
minority held that ─
“
The officer was also within
the ‘scope of employment’ even as narrowly defined by the court.
The officer was authorized to
travel to a training session in New
Mexico. During his return trip, he was receiving per diem and
mileage. He was authorized
to drive his assigned police car with
red lights affixed on top. He testified that he thought it part of
his duties to offer a
stranded motorist a ride. Ms. Primeaux
testified that Officer Scott approached her and turned on his red
lights on the police
vehicle. The district court found all of these
facts to be true. To hold that Officer Scott, under these
circumstances, was not
acting within the scope of his employment is
inexplicable.”
55
(footnotes and emphasis omitted)
The decision was
accordingly highly fact sensitive and there was a powerful dissent
signed by nearly half the members of the court
which must weaken its
persuasiveness to us. Moreover, the facts of the case are
distinguishable from the facts of the present
case, particularly in
view of the fact that the police officer was neither formally on
duty, nor in uniform. Its persuasiveness
is weakened, too, by the
fact that it is clear that the provisions of the United States
federal legislation are not directly comparable
to our own rules. I
cannot accept therefore that the respondent’s reliance on this
case can be dispositive of the case before
us.
This brief
review illustrates that the problem of the vicarious liability of
employers for sexual assaults committed by employees
is one which
is faced by legal systems in some other parts of the world. Courts
have grappled with the need to identify the
circumstances in which
employers will be liable for such assaults. It is interesting to
note that the approach in the United
Kingdom, in terms of which the
courts ask whether there is a close link between the wrongful
conduct of the employees and the
business of the employer or the
nature of the employment, is very similar to the test set in
Rabie
.
The approach taken by the Canadian Supreme Court sets a similar
objective test to be answered in the light of a range of factors.

There can be no doubt that the jurisprudence of these jurisdictions
will be of value in considering the development and application
of
our own rules of vicarious liability.
The development
of the common law
From this
comparative review, we can see that the test set in
Rabie
,
with its focus both on the subjective state of mind of the
employees and the objective question, whether the deviant conduct
is nevertheless sufficiently connected to the employer’s
enterprise, is a test very similar to that employed in other
jurisdictions.
The objective element of the test which relates to
the connection between the deviant conduct and the employment,
approached
with the spirit, purport and objects of the Constitution
in mind, is sufficiently flexible to incorporate not only
constitutional
norms, but other norms as well. It requires a court
when applying it to articulate its reasoning for its conclusions as
to whether
there is a sufficient connection between the wrongful
conduct and the employment or not. Thus developed, by the explicit
recognition
of the normative content of the objective stage of the
test, its application should not offend the Bill of Rights or be at
odds
with our constitutional order.
Application to
facts of this case
The common-law
test for vicarious liability in deviation cases as developed in
Rabie’s
case and further developed earlier in this
judgment needs to be applied to new sets of facts in each case in
the light of the
spirit, purport and objects of our Constitution.
As courts determine whether employers are liable in each set of
factual circumstances,
the rule will be developed. The test is one
which contains both a factual assessment (the question of the
subjective intention
of the perpetrators of the delict) as well as
a consideration which raises a question of mixed fact and law, the
objective question
of whether the delict committed is “sufficiently
connected to the business of the employer” to render the employer
liable.
The
applicant’s counsel argued that in order to determine whether the
respondent was vicariously liable for the harm the applicant
suffered, it is necessary to bear in mind that the conduct of the
policemen comprised both a commission which was wrongful, the
rape
of the applicant, and an omission which was also wrongful, the
failure to protect the applicant from crime. The Supreme
Court of
Appeal rejected this argument in the following passage ─
“
Counsel submitted, however,
that a different test should be applied. He contended that once it
was shown that the policemen were
on duty when they gave the
appellant a lift and that in offering to take her home safely they
were acting within the course of
their duties as policemen to
prevent crime, then by the very act of deviating from those duties
they rendered the respondent vicariously
liable. In other words, it
was the deviation itself that rendered the respondent liable and the
degree of the deviation was wholly
irrelevant. This is not the law
and never has been; nor was counsel able to refer to any authority
in support of such a novel
proposition. In my view it is without
merit.”
56
In making the
submission in this Court, applicant’s counsel relied on the
statement by Watermeyer CJ in
Feldman’s
case, cited
earlier,
57
that the fact that an employee’s conduct is, on the face of it,
purely in pursuit of the business of the employee, is not

necessarily sufficient to ensure that the employer will not be
liable. A further question will need to be considered and that
is
whether in pursuing his or her own interests, the employee will be
neglecting the tasks required by the employer. If so,
then the
employer may nevertheless be liable. In his judgment, Watermeyer
CJ gave the example of a railway gate keeper who,
on a hot day,
deserts his post to get refreshment, and while he is away an
accident occurs. Watermeyer CJ noted that the “servant’s
indulgence in a frolic may in itself constitute a neglect to
perform his master’s work properly, and may be the cause of the
damage.”
58
In such circumstances, Watermeyer CJ implied the employer would be
vicariously liable.
59
There can be
no doubt that Watermeyer CJ’s reasoning is correct and that to
the extent that the Supreme Court of Appeal rejected
this argument
of the applicant in this case, it was mistaken. An employee can at
the same time be committing a delict for his
or her own purposes,
and neglecting to perform his or her duties as an employee and this
has been recognised by our courts, at
the very least by Watermeyer
CJ in
Feldman
. In this case it is clear that the delict for
which the applicant seeks to hold the respondent liable is the rape
by the three
policemen. That rape was clearly a deviation from
their duties. However when committing the rape, the three
policemen were
simultaneously omitting to perform their duties as
policemen.
The question
of the simultaneous omission and commission may be relevant to
wrongfulness in a particular case, but it will also
be relevant to
determining the question of vicarious liability. In particular, it
will be relevant to answering the second question
set in
Rabie
:
was there a sufficiently close connection between that delict and
the purposes and business of the employer?
It is
necessary now to apply the test set in
Rabie
, adapted in the
light of the preceding discussion, to the facts of this case. As
to the first leg of the test, it is clear that
the three policemen
did not rape the applicant upon the instructions of the respondent.
Nor did they further the respondent’s
purposes or obligations
when they did so. They were indeed, subjectively viewed, acting in
pursuit entirely of their own objectives
and not those of their
employer. That conclusion is not the end of the matter.
The next
question that arises is whether, albeit that the policemen were
pursuing their own purposes when they raped the applicant,
their
conduct was sufficiently close to their employer’s business to
render the respondent liable. In this regard, there are
several
important facts which point to the closeness of that connection.
First, the policemen all bore a statutory and constitutional
duty
to prevent crime and protect the members of the public. That duty
is a duty which also rests on their employer and they
were employed
by their employer to perform that obligation. Secondly, in
addition to the general duty to protect the public,
the police here
had offered to assist the applicant and she had accepted their
offer. In so doing, she placed her trust in the
policemen although
she did not know them personally. One of the purposes of wearing
uniforms is to make police officers more
identifiable to members of
the public who find themselves in need of assistance.
Our
Constitution mandates members of the police to protect members of
the community and to prevent crime. It is an important
mandate
which should quite legitimately and reasonably result in the trust
of the police by members of the community. Where
such trust is
established, the achievement of the tasks of the police will be
facilitated. In determining whether the Minister
is liable in
these circumstances, courts must take account of the importance of
the constitutional role entrusted to the police
and the importance
of nurturing the confidence and trust of the community in the
police in order to ensure that their role is
successfully
performed. In this case, and viewed objectively, it was reasonable
for the applicant to place her trust in the
policemen who were in
uniform and offered to assist her.
Thirdly, the
conduct of the policemen which caused harm constituted a
simultaneous commission and omission. The commission lay
in their
brutal rape of the applicant. Their simultaneous omission lay in
their failing while on duty to protect her from harm,
something
which they bore a general duty to do, and a special duty on the
facts of this case. In my view, these three inter-related
factors
make it plain that viewed against the background of our
Constitution, and, in particular, the constitutional rights of
the
applicant and the constitutional obligations of the respondent, the
connection between the conduct of the policemen and their
employment was sufficiently close to render the respondent liable.
In seeking to
avoid this conclusion, counsel for the respondent pointed to the
fact that the policemen were not permitted to transport
ordinary
members of the public in their car. It is true that the relevant
paragraph of the standing order of the police stipulates
that only
people who have been injured or who have been stranded (“in die
nood is”) may be transported.
60
It may well be, however, as counsel for the applicant argued, that
the transportation of the applicant if offered in good faith
would
not have constituted a breach of the standing order. The applicant
was after all stranded in a big city at night on her
own. She was
at risk.
Even were the
transportation of the applicant to have been in breach of the
standing order, however, it is clear that the fact
that employees
breach a rule of their own employment is not sufficient of itself
always to avoid employer liability.
61
It remains a factor to be considered in determining whether the
connection between the wrong and the employment is sufficiently
close or not. It cannot on its own always be determinative. In
this case, the applicant accepted assistance offered by the
police.
The fact that this may have been against standing orders is not
sufficient on its own in view of the other factors already
mentioned to mean that the respondent cannot be vicariously liable.
Counsel for
the respondent conceded that if the policemen had arrested the
applicant and then raped her in circumstances otherwise
similar to
this case, the respondent would have been liable vicariously. He
argued however that as the applicant had not been
arrested in this
case, no liability on the part of the respondent should arise.
Although there can be no doubt that where police
officers arrest or
detain a person, and then assault that person, it is likely that
the respondent would be liable, it does not
seem to me that the
converse should be true and that the respondent should not be
liable where the assault is on a person who
has not been arrested
but has accepted an offer of assistance from the police. In this
case, the applicant willingly accepted
assistance from the
policemen. Once in their car, when it became clear that they no
longer intended to take her home safely,
she struggled and sought
to resist their attack. To conclude that, on the facts of this
case the Minister is not liable, when
it is conceded he would have
been liable should Ms K have been detained on a reasonable
suspicion of having committed an offence
and then raped, would be
absurd. It would be a conclusion quite at odds with our
constitutional values and the values of our
community. The
concession, therefore, while rightly made, highlights the untenable
nature of the respondent’s argument.
These factors
mentioned by counsel for the respondent do not avoid the conclusion
that there was a close connection between the
wrongful conduct of
the policemen and the nature of their employment. In sum, the
opportunity to commit the crime would not
have arisen but for the
trust the applicant placed in them because they were policemen, a
trust which harmonises with the constitutional
mandate of the
police and the need to ensure that mandate is successfully
fulfilled. When the policemen – on duty and in uniform
– raped
the applicant, they were simultaneously failing to perform their
duties to protect the applicant. In committing the
crime, the
policemen not only did not protect the applicant, they infringed
her rights to dignity and security of the person.
In so doing,
their employer’s obligation (and theirs) to prevent crime was not
met. There is an intimate connection between
the delict committed
by the policemen and the purposes of their employer. This close
connection renders the respondent liable
vicariously to the
applicant for the wrongful conduct of the policemen.
In the light
of the conclusion to which I have come, namely that the respondent
is vicariously liable for the conduct of the policemen,
it is not
necessary to consider the argument made by the applicant that the
respondent was directly liable in delict to the applicant.
Costs
The applicant
has been successful in this Court and is therefore entitled to
receive her costs, including the costs of two counsel
where she was
represented by two counsel, not only in this Court but also in the
Supreme Court of Appeal, and the High Court.
Order
The following
order is made:
The
application for leave to appeal is granted.
The
orders of the Supreme Court of Appeal and the High Court are
set aside, including the costs orders made by those
Courts.
It is
declared that the respondent is liable to the applicant for
the damages suffered by the applicant as a result
of the
wrongful conduct of Sergeant Nathaniel Rammutle, Sergeant
Ephraim Gabaatlholwe and Sergeant Edwin Nqandela
in the early
morning of 27 March 1999.
The case
is referred back to the Johannesburg High Court to determine
the quantum of damages in the light of this
judgment.
Respondent
is ordered to pay the costs of the applicant in this Court,
the Supreme Court of Appeal and the High Court,
such costs to
include the costs of two counsel if two counsel appeared on
behalf of the applicant.
Langa CJ, Moseneke
DCJ, Madala J, Mokgoro J, Sachs J, Skweyiya J, Van der Westhuizen J
and Yacoob J concur in the judgment of
O’Regan J.
For the
applicant: W Trengove SC and K Pillay instructed by Women’s Legal
Centre, Cape Town.
For the
respondent: PF Louw SC and JA Babamia instructed by the State
Attorney, Johannesburg.
1
See subsections 10(1)(c)(i)-(vi) of the Special
Force Order, SFO3A/87/10.
2
This is the term used in the official English version. The Afrikaans
version, included in the agreed statement of facts, reads
“in die
nood is”.
3
K v Minister of Safety and Security
2005
(3) SA 179
(SCA) at para 4.
4
Id at para 10.
5
[2002] ZACC 26
;
2003 (2) SA 34
(CC);
2003 (1) BCLR 14
(CC).
6
Id at
para 9.
7
Section 12 of the Constitution
─
“
(1) Everyone has the right to
freedom and security of the person, which includes the right
─
(a) not to be deprived of freedom
arbitrarily or without just cause;
(b) not to be detained without
trial;
(c) to be free from all forms of
violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman
or degrading way.
(2) Everyone has the right to bodily
and psychological integrity, which includes the right
─
(a) to make decisions concerning
reproduction;
(b) to security in and control over
their body; and
(c) not to be subjected to medical
or scientific experiments without their informed consent.”
8
Section 10 of the Constitution
─
“
Everyone has inherent dignity and
the right to have their dignity respected and protected.”
9
Section 14 of the Constitution
─
“
Everyone has the right to
privacy, which includes the right not to have
─
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their
communications infringed.”
10
Section 9 of the Constitution
─
“
(1) Everyone is equal before the
law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and
equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.
(3) The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race,
gender,
sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief,
culture, language and birth.
(4) No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in terms of
subsection (3).
National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or more of
the grounds listed in subsection (3) is unfair unless it is
established that the discrimination
is fair.”
11
Section 39(2) of the Constitution reads
─
“
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of
Rights.”
12
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 54.
13
Section 8(1) of the Constitution.
14
[2003] ZACC 12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR 1100
(CC) at
para 28.
15
Section 205(3) of the Constitution provides that:
“
The objects of the police service are to prevent,
combat and investigate crime, to maintain public order, to protect
and secure
the inhabitants of the Republic and their property, and
to uphold and enforce the law.”
16
Preamble to the
South African Police Service Act,
68 of 1995
.
17
Note that the interim Constitution was in force
at the relevant time for the purposes of
Carmichele
as well
as an earlier Police Act, 7 of 1958. The differences between the
two Constitutions and the two pieces of legislation have
no
relevance for the purposes of this case.
18
Carmichele
above n 12 at para 62.
19
Above n 3 at para 8.
20
See, for example,
Bezuidenhout NO v Eskom
2003 (3) SA 83
(SCA) at para 19;
Minister of Law and Order v
Ngobo
[1992] ZASCA 172
;
1992 (4) SA 822
(A) at 833G-H;
Hirsch Appliance
Specialists v Shield Security Natal (Pty) Ltd
1992 (3) SA 643
(D) at 647G-H. See also the judgment of the Supreme Court of Appeal
in this matter above n 3 at para 4.
21
See, for example, Barlow
The South African Law of Vicarious
Liability in Delict
(Juta, Cape Town and Johannesburg 1939), at
3-4; Neethling et al
Deliktereg
4 ed (Butterworths, Durban
2002), at 389-391; Scott
Middellike Aanspreeklikheid in die
Suid-Afrikaanse Reg
(Butterworth, Durban and Pretoria 1983), at
12-13;
Fleming
The Law of Torts
9 ed (LBC
Information Services, Sydney 1998), at 409-10; Atiyah
Vicarious
Liability in the Law of Torts
(Butterworths, London 1967), at
12-15; Laski “The Basis of Vicarious Liability” (1916-17) 26
Yale Law Journal
105 at 105-7.
22
See the discussion of these principles by
McLachlin J in
Bazley v Curry
1999 Can LII 692 (SC)
;
[1999] 2 SCR 534
at para 26ff,
and Binnie J in
Jacobi v Griffiths
[1999] 2 SCR 570
at paras
68-76.
23
See, for example,
Feldman (Pty) Ltd v Mall
1945 AD 733
per Watermeyer CJ at 741, per Davis AJA at 784-5;
Grobler v Naspers Bpk en ‘n Ander
2004 (4) SA 220
(C) at
296F-297C (with reference to recent court decisions in the USA, UK,
Canada, Australia and New Zealand);
Hirsch
above n 20 at
647G-649B.
24
See, for example,
Ess
Kay Electronics Pte Ltd and Another
v First National Bank of Southern Africa Ltd
2001 (1) SA 1214
(SCA) at paras 9-10;
Ngobo
above n 20 at 831G;
Carter &
Co (Pty) Ltd v McDonald
1955 (1) SA 202
(A) at 211H.
25
See, for example,
Bezuidenhout
above n 20 at para 23;
Minister van Veiligheid en Sekuriteit v Japmoco BK h/a Status
Motors
2002 (5) SA 649
(SCA) at para 1;
ABSA Bank Ltd v Bond
Equipment (Pretoria) (Pty)
Ltd
[2000] ZASCA 136
;
2001 (1) SA 372
(SCA) per Zulman
JA at para 5.
26
See the South African authorities above n 23;
Bazley
above n
22
;
Jacobi
above n 22, and at paras 13-19
(per McLachlin J, dissenting);
London Drugs Ltd v Kuehne &
Nagel International Ltd
[1992] 3 SCR 299
at 336f-339h;
Lister
and others v Hesley Hall Ltd
[2001] UKHL 22
;
[2002] 1 AC 215
(HL) per Lord
Millet at para 65. See also Fleming
above n 21; Atiyah above
n 21, at 171-2; Heuston and Buckley
Salmond & Heuston
on
the Law of Torts
21 ed (Sweet & Maxwell, London 1996) at
431.
27
Section 1(d) of the Constitution requires
government to be committed to accountability, responsiveness and
openness. This commitment
is affirmed in sections 41(1)(c) and 195,
which oblige all spheres of government and all organs of state
within each sphere to
provide effective, transparent, accountable
and coherent government. See
Rail Commuters Action Group
and Others v Transnet Ltd t/a Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA
359
(CC);
2005 (4) BCLR 301
(CC)
at paras 74-78.
28
See, for example,
Jordaan v Bloemfontein Transitional Local
Authority and Another
2004 (3) SA 371
(SCA) at para 3;
Bezuidenhout
above n 20 at para 3;
Minister Van Veiligheid
en Sekuriteit v Phoebus Apollo Aviation BK
2002 (5) SA 475
(SCA)
at para 5;
Govender v Minister of Safety and Security
2001
(4) SA 273
(SCA) at para 3;
Ess Kay
above n 24 at para 7;
ABSA
above n 25 per Zulman JA at para 5;
Minister of
Safety and Security v Jordaan t/a Andre Jordaan Transport
2000
(4) SA 21
(SCA) at para 5;
Sea Harvest Corporation (Pty) Ltd and
Another v Duncan Dock Cold Storage (Pty) Ltd and Another
2000
(1) 827 (SCA) at para 29;
Venter v Bophuthatswana Transport
Holdings (Edms) Bpk
[1997] ZASCA 16
;
1997 (3) SA 374
(SCA) at 386A;
Tshabalala
v Lekoa City Council
1992 (3) SA 21
(A) at 28A-B;
Feldman
above n 23 at 736;
Estate Van der Byl v
Swanepoel
1927 AD 141
at 146;
Mkize v Martens
1914
AD 382
at 390
.
29
Estate Van der Byl v Swanepoel
above n 28
at 146. See also
ABSA
above n 25 per Zulman JA at para 5;
Ngobo
above n 20 at 827A.
30
Thus, a
kraalhead is liable for all the delictual
acts of inhabitants of the kraal. See the discussion in Bennett
A
Sourcebook of African Customary Law for Southern Africa
(Juta,
Cape Town 1991) at 351ff and Bekker
Seymour’s Customary Law in
Southern Africa
(Juta, Cape Town 1989) at 82ff.
31
Above n 23.
32
Id a
t 742.
33
Id a
t 744.
34
Id a
t 741.
35
Id a
t 756-7. See also the dictum of Davis AJA at
784; and that of Greenberg JA (dissenting) at 762.
36
See, for example,
Minister of Police v Rabie
1986 (1) SA 117
(A) at 130F-G;
African Guarantee &
Indemnity Co Ltd v Minister of
Justice
1959 (2) SA
437
(A) at 446F-G
.
37
See, for example, the judgments referred to in the previous note and
ABSA
above n 25 per Zulman JA at para 5;
Minister of
Safety and Security v Jordaan t/a Andre Jordaan Transport
above
n 28 at para 5;
Viljoen v Smith
[1996] ZASCA 105
;
1997 (1) SA 309
(A) at
316B-F.
38
Above
n 36.
39
Id at 134C-E. Although Jansen JA’s judgment was criticised in a
later case, especially insofar as it appeared to adopt “creation
of risk” as a material factor relevant to the determination of
vicarious liability (
Ngobo
above n 20 at 832B-D), its
statement of the standard test cited in this paragraph was not
directly criticised (see
Japmoco
above n 25 at para 11).
Indeed, the
Rabie
test has been applied in
many cases since
Ngobo
. See, for example,
Minister van
Veiligheid and Sekuriteit v Phoebus Apollo
above n 28 at para
10;
Japmoco
above n 25 at para 11;
ABSA
above n 25 per
Zulman JA at para 5;
Minister of Safety and Security v Jordaan
t/a Andre Jordaan Transport
above n 28 at para 5.
40
See above n 39. See also
Rail
Commuters
above n 27 at para 60 and
S v
Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) at paras
50-53 as to the distinction between purely factual and mixed fact
and law questions.
41
In a recent judgment of the Supreme Court of
Appeal, as yet unreported, but drawn to our attention during the
hearing, for example,
the Supreme Court of Appeal formulated the
test so as to ask whether the employee had failed to discharge a
duty, and held vicarious
liability to exist (
Commissioner for the
South African Revenue Service and Another v TFN Diamond Cutting
Works (Pty) Ltd
070/04, 22 March 2005, at paras 8-9).
Neethling’s review of the test indicates that it has mutated over
the years (above n 21
at 402-3), and Scott’s statement that the
courts have formulated specific rules from case to case bears out
the protean character
of the test (above n 21 at 133).
42
See, for example, the seminal article by Otto
Kahn-Freund “On the uses and misuses of comparative law”
(1974)
37
Modern Law Review
1
.
43
See section 39(2) of the Constitution above n 11.
44
Above n 26.
45
Id a
t para 28. See also the approach adopted by
Lord Clyde who held that –
“
. . . the essence of the decision seems to me to lie
in the recognition of the existence of a sufficient connection
between the
acts of the employee and the employment. This in turn
was explored by reference to various factors by reference to which
the strength
of the connection can be established.” (At para 48.)
Lord Hobhouse too spoke
of a connection between the wrongful conduct and the duties of the
employee as follows –
“
Whether or not some act comes within the scope of
the servant’s employment depends upon an identification of what
duty the servant
was employed by his employer to perform. . . . If
the act of the servant which gives rise to the servant’s liability
to the plaintiff
amounted to a failure by the servant to perform
that duty, the act comes within ‘the scope of his employment’
and the employer
is vicariously liable. If, on the other hand, the
servant’s employment merely gave the servant the opportunity to do
what he
did without more, there will be no vicarious liability,
hence the use by Salmond and in the Scottish and some other
authorities
of the word ‘connection’ to indicate something which
is not a casual coincidence but has the requisite relationship to
the
employment of the tortfeasor (servant) by his employer”. (At
para 59.)
46
Id a
t para 82.
47
Above n 22.
48
Above n 22.
49
Above n 22 a
t para 41.
50
Id a
t para 58.
51
[1999] USCA8 502
;
181 F 3d 876
(8
th
Cir 1999).
52
28 USC §§ 1346(b)(1), 2671 et seq.
53
Above n 51 at 882.
54
Id
55
Id at 887.
56
Above n 3 a
t para 6.
57
At 742 of the judgment, above at para 27.
58
At 744 of the judgment, above para 27.
59
See the discussion of this precise example in
Atiyah
above n 21 at 264-5.
60
Special Force Order 3(A) of 1987, above at para 7.
61
See, for example,
ABSA
above n 25 per
Zulman JA at para 5;
Estate van der Byl v Swanepoel
above n 28
at 145-6 and 151-2. The rule established in
South African
Railways and Harbours v Marais
1950 (4) SA 610
(A), and affirmed
in
Bezuidenhout
above n 20 at para 19, that an employer is
not liable where a driver, contrary to clear instructions, gives a
lift to a friend who
is subsequently injured through the negligent
driving of the driver is not directly relevant to this case. It is
clear that Ms
K did not know the policemen and did not accept the
lift in circumstances similar to either
Marais
or
Bezuidenhout
. It is not necessary to consider these cases
further now.