scholarly journals LIABILITY OF THE STATE FOR RAPE BY A POLICEMAN: THE SAGA TAKES A NEW DIRECTION Minister of Safety and Security v F 2011 3 SA 487 (SCA)

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
J Neethling
Keyword(s):  
Standard Test ◽  
The State ◽  
Close Connection ◽  
Bill Of Rights ◽  
Vicarious Liability ◽  
Statutory Duty ◽  
Police Official ◽  
Contract Of Employment ◽  
Failure To Protect ◽  
Locus Classicus

The locus classicus and trend-setting decision for the vicarious liability of the state for the rape of a woman by a police official, is certainly K v Minister of Safety and Security. Here the plaintiff (K), a young woman, became stranded late at night. Three on-duty police officials, dressed in full uniform, offered to take her home in a police vehicle. On the way she was raped by all three of them. O’Regan J held that the state was vicariously liable for the conduct of the policemen. According to the standard test for vicarious liability, which was formulated in Minister of Police v Rabie, an employer may only escape vicarious liability if the employee, viewed subjectively, has not only exclusively promoted his own interests, but, viewed objectively, has also disengaged himself from the duties of his contract of employment to such an extent that a sufficiently close connection between the employee’s conduct and his employment is absent. Applying this test as informed by the constitutional Bill of Rights, O’Regan J found that although the policemen exclusively promoted their own interests by raping the plaintiff, a “sufficiently close connection” nevertheless existed between the conduct of the police and their work to hold their employer vicariously liable, for the following reasons: there was a constitutional and statutory duty on the state as well as the policemen to prevent crime and to protect members of public; the policemen offered to help the plaintiff and she acted reasonably by accepting the offer and trusting them; and the conduct of the policemen consisted simultaneously of a commissio (the brutal rape) and an omissio (their failure to protect her against the rape). 

scholarly journals STATE LIABILITY FOR MUTINOUS ACTS OF POLICE AND MILITARY OFFICERS: A CRITIQUE OF LESOTHO AND ZIMBABWE CASES IN LIGHT OF THE MODERN TEST FOR VICARIOUS LIABILITY IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
Police Officers ◽  
Attorney General ◽  
Standard Test ◽  
The State ◽  
Constitutional Court ◽  
High Court ◽  
Vicarious Liability ◽  
Dead End ◽  
State Liability

A mutiny by soldiers or police officers is no doubt, a serious criminal offence. So is the rape of a young girl or woman by police officers, or shooting someone by the police or military personnel without lawful authority, or supplying military hardware by a defence official charged with guarding the armoury to those who use them for armed robbery purposes? However, if the State as the employer is held vicariously liable for these acts of misconduct, why should it be absolved from liability for the wrongful acts of the soldiers or police officers for injuries caused in a situation of mutiny? It seems clear from the case law that an argument that the State is vicariously liable in such circumstances is bound to hit a dead end if it is based on the old “standard test” which contemplated only negligent, at most, reckless conduct of the employee. This was the beginning of the collapse of the arguments of the plaintiffs in the Lesotho Court of Appeal in Chabeli v Commissioner of Police; the High Court in Seoane v Attorney General; and the Harare High Court in Munengami v Minister of Defence, where the question of the liability of the State was canvassed on the basis of the old “standard test” for determining vicarious liability. It is submitted that if these cases were argued around the “close connection” test as enunciated by the Constitutional Court in K v Minister of Safety and Security and affirmed in F v Minister of Safety and Security, the outcomes might have been different. It seems compelling, therefore, that in analysing these Lesotho and Zimbabwean cases, one must do so with the hindsight of the modern test for determining vicarious liability in South Africa, where the conduct of the employee is not merely negligent in character but deliberate or dishonest in nature.

Asad on the Secular

2013 ◽  
Vol 30 (1) ◽  
pp. 1-21
Author(s):  
Auwais Rafudeen
Keyword(s):  
Human Rights ◽  
South African ◽  
The State ◽  
South African Context ◽  
Bill Of Rights ◽  
The South ◽  
Legal Nature ◽  
African Context

This paper examines a South African debate on legislating Muslim marriages in the light of anthropologist Talal Asad’s critique developed in his Formations of the Secular (2003). It probes aspects of the debate under four Asadian themes: (1) the historicity of the secular, secularism, and secularization; (2) the place of power and the new articulations of discourses it creates; (3) the state as the arm of that power; and (4) the interconnections (or dislocations) among law, ethics, and the organic environment (habitus). I argue that Asad illumines the debate in the following ways: (1) by providing a deeper historical and philosophical appreciation of its terms of reference, given that the proposed legislation will be subject to South Africa’s secular Bill of Rights and constitution; (2) by requiring us to examine and interrogate the genealogies of such particular hegemonic discourses as human rights, which some participants appear to present as ahistorical and privileged; and (3) by showing, through the concept of habitus, why this debate needs to go beyond its present piecemeal legal nature and develop an appreciation of the organic linkages among the Shari‘ah, morality, community, and self. Yet inevitable nuances are produced when applying Asad’s ideas to the South African context.

Significant choice-of-law interests and its impact on the formation of choice-of-law regulation in the field of intellectual property

2021 ◽  
pp. 186
Author(s):  
Svetlana I. Krupko
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
The State ◽  
Close Connection ◽  
Choice Of Law ◽  
Applicable Law ◽  
Advantages And Disadvantages ◽  
Special Rules

This article analyzes the choice-of-law interests of specific and potential participants in the relations of intellectual property rights and the state in order to establish the closest connection of the above type of relation with the state, whose law should be applied. Taking into account the directionality of significant choice-of-law interests, advantages and disadvantages of territorial and universal approaches, a theoretically based solution is proposed for the formation of a general choice-of-law rule on the law to be applied to the relation of intellectual property rights. It was revealed in the study that the diversity of the relations of intellectual property rights (their obligatory and non-obligatory, property and personal non-property nature, other differences in legal features) does not automatically generate a multidirectionality of significant choice-of-law interests that should be taken into account when establishing a close connection of the above type of the relation with the state for determination of applicable law, does not prevent the formation of a general choice-of-law rule for the relations of intellectual property rights in general and does not unequivocally testify in favor of the specialization of its binding. However, the diversity of the relations of intellectual property rights should be examined and evaluated for the feasibility and limits of exceptions from the general choice-of-law rule and the development of special rules for resolving certain private of the relations of intellectual property rights.

scholarly journals F v MINISTER OF SAFETY AND SECURITY: Vicarious liability and state accountability for the criminal acts of police officers

2016 ◽  
Author(s):  
Heidi Barnes
Keyword(s):  
Police Officers ◽  
The State ◽  
Constitutional Court ◽  
Vicarious Liability ◽  
State Accountability ◽  
Normative Basis ◽  
The Law

The Constitutional Court judgement in F v Minister of Safety and Securityis a ground-breaking judgement in two important respects: firstly, it finally does away with the fiction that an employee acts within the course and scope of her employment in the so-called deviation cases in the law of vicarious liability, and secondly it clarifies the normative basis for holding the state vicariously liable for the criminal acts of police officers. In this latter respect it significantly promotes state accountability for the criminal acts of police officers.

scholarly journals Socio-economic rights and women in South Africa: nothing but a handful of feathers?

2011 ◽  
Vol 7 (1) ◽  
Author(s):  
M K Ingle
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Political Science ◽  
South African ◽  
Gender Studies ◽  
The State ◽  
Development Studies ◽  
Bill Of Rights ◽  
Economic Rights ◽  
South African Constitution

The Bill of Rights contained within South Africa’s Constitution features a number of ‘socio- economic rights’. Although these rights are justiciable they are subject to various limitations. They generally entail a positive onus on the part of the state to provide some good – not immediately, but ‘progressively’. Women have a direct interest in the realization of these rights and, where given effect to, they should exert a positive developmental impact. Some authorities are, however, of the opinion that socio-economic rights are not really enforceable. This article contends that the provision of social goods, by the state, should be the concomitant of the disciplined implementation of policy. Delivery should not therefore be contingent upon the legalistic vagaries of the human rights environment.Keywords: Socio-economic rights; justiciability; Bill of Rights; development; South African Constitution; womenDisciplines: Development Studies;Human Rights; Gender Studies; Political Science

scholarly journals What Are We Waiting For? It’s Time to Regulate Paralegals in Canada

2018 ◽  
Vol 35 ◽  
pp. 149-176 ◽  
Author(s):  
Lisa Trabucco
Keyword(s):  
Public Interest ◽  
Self Regulation ◽  
The State ◽  
Access To Justice ◽  
Legal Services ◽  
The Public ◽  
Statutory Duty

Law societies in Canada have long been granted the privilege of self-regulation by the state – a privilege that comes with a statutory duty to govern in the public interest. There exists an access to justice crisis in this country. More must be done to address unmet legal needs. There is nothing new in this, but law societies across Canada are reluctant to implement at least one ready solution. Ontario introduced paralegal regulation over ten years ago with the promise that it would increase access to justice. Evidence suggests that it has done so. Yet no other Canadian jurisdiction is prepared to regulate paralegals as independent providers of legal services. Law societies’ continued resistance to the regulation of paralegals is contrary to the public interest. This paper argues that to alleviate the access to justice crisis, it is time to regulate paralegals.

Still Awaiting Clarity: Why Victoria’s New Civil Liability Laws for Organisational Child Abuse Are Less Helpful than They Appear

2020 ◽  
Vol 43 (2) ◽  
Author(s):  
Laura Griffin ◽  
Gemma Briffa
Keyword(s):  
Child Abuse ◽  
Common Law ◽  
Strict Liability ◽  
Civil Liability ◽  
Royal Commission ◽  
Duty Of Care ◽  
High Court ◽  
Vicarious Liability ◽  
Statutory Duty ◽  
Institutional Responses

In 2017 Victoria became the first Australian jurisdiction to initiate substantive reforms to its civil liability laws, to address barriers faced by plaintiffs seeking to hold institutions liable for child abuse. The new law, based on recommendations arising from a Victorian inquiry, establishes a statutory duty of care owed by organisations to take reasonable precautions against abuse of children under their care or supervision. On its face, the Wrongs Amendment (Organisational Child Abuse) Act 2017 (Vic) looks like a helpful clarification of this complex area of law. However, when viewed within the context of the work of the Royal Commission on Institutional Responses to Child Sexual Abuse, as well as common law principles – particularly strict liability in the areas of non- delegable duty and vicarious liability, and the High Court decision of Prince Alfred College Inc v ADC – we see that barriers and uncertainties remain.

Revenue

2020 ◽  
pp. 225-260
Author(s):  
Richard B. Collins ◽  
Dale A. Oesterle ◽  
Lawrence Friedman
Keyword(s):  
Public Debt ◽  
Income Tax ◽  
The State ◽  
Property Taxes ◽  
Tax Structure ◽  
Bill Of Rights ◽  
State Income Tax ◽  
State Income ◽  
Public Revenue ◽  
The Many

This chapter highlights Article X of the Colorado Constitution, dealing with revenue. It is one of the constitution’s most distinctive sections Detailed provisions lay out the state’s tax structure. Sections 3, 3.5, and 15 are extensive rules for property taxes and their equalization across the state. Sections 4 and 5 exempt public, religious, and charitable property. Sections 17 and 19 authorize and define the state income tax. Section 20, the Taxpayers Bill of Rights or TABOR requires prior voter consent to new or increased taxes and public debt and for public revenue above specified formulas. It also forbids specified taxes. The chapter explains in detail the many legal disputes about interpretation of this section.

18. Employer’s Liability

2019 ◽  
pp. 528-540
Author(s):  
Simon Deakin ◽  
Zoe Adams
Keyword(s):  
Social Security ◽  
Regulatory Reform ◽  
Vicarious Liability ◽  
Statutory Duty ◽  
The Law ◽  
Negligence Law

The liability of an employer to an employee has two aspects. There is liability to employees for harm suffered by them, and liability for harm caused by them in the course of their employment (vicarious liability, covered in chapter 19). Both represent forms of stricter liability. This chapter discusses the negligence law liability of employers, liabilities arising from statutory duties, and related aspects of social security law. It analyses the concept of the non-delegable duty in the employment context. It also discusses the implications for employer’s liability of reforms made to the law of breach of statutory duty in the Enterprise and Regulatory Reform Act 2013.

10. Performance of the Contract of Employment

2020 ◽  
pp. 268-301
Author(s):  
Astra Emir
Keyword(s):  
Public Interest ◽  
Personal Service ◽  
Employment Contract ◽  
Vicarious Liability ◽  
Personal Nature ◽  
Contract Of Employment

This chapter begins with a discussion of the personal nature of the employment contract, and the fact that such a contract is necessarily one of personal service which gives rise to duties and obligations on both sides. It deals with issues such as the implied duties of the employer to provide for the employee (including the implied duty to provide work, pay wages, confidentiality, and the implied duty of trust and confidence), and the corresponding implied obligations of the employee (including the duty of faithful service, duty to use skill and care). There is also a discussion of whistleblowing and public interest disclosures. It then explains; employer’s vicarious liability; and statutory provisions relating to harassment.

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