An Appraisal of the Vicarious Liability of Juristic Persons (Minister of Police) in the Law of Delict with a Constitutional Developmental Imprint of K. v Minister of Safety and Security

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 principle of vicarious liability ascribes liability to an employer where its employees have committed a wrong but where the employer is not at fault. There is also 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. It means a person in authority, like the Ministry of Police, will be held liable to a third party for injuries caused by a person under its authority. It is alleged that in the subject matter of this study in case law, K v Minister of Safety and Security, that constitutional issues are not raised. It is averred that the case concerns the application of the principle of vicarious liability only. But the highest court in South Africa, the Constitutional Court, exerted that it is necessary to move beyond vicarious liability and implicate the state/Ministry of Police with direct liability. In K v Minister of Safety and Security direct liability was not dealt with because it was not argued. The research stresses that there is no reason why direct liability should not be an option. With both causes of action, the pure application of the principles of the law of delict will prevent unfair results. This why the time is right to develop K v Minister of Safety and Security to bring vicarious liability and other delictual principles, such as wrongfulness, negligence, intent and direct liability in line with constitutional developments and demands of the time. The Constitutional Court of South Africa held that the common-law principle of vicarious liability be adapted so that it grows in harmony with the objective normative system found in the Constitution.