The Application of the Principles of Vicarious Liability in Minister of Safety and Security v Morudu: A Critical Analysis

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Thembinkosi W Maseko
Keyword(s):  
Constitutional Court ◽  
Bill Of Rights ◽  
Constitutional Democracy ◽  
High Court ◽  
Vicarious Liability ◽  
The Past ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Court Of Appeal

The past twenty years of South Africa’s constitutional democracy have been challenging for the courts. However, the courts have managed to develop the common-law principle of vicarious liability in conformity with the spirit, purport and objects of the Constitution. What is concerning, though, is that the courts are still grappling with the application of the law of vicarious liability, despite this area of the law having been developed by the Constitutional Court. A case in point is Minister of Safety and Security v Morudu 2016 (1) SACR 68 (SCA), where the Supreme Court of Appeal (SCA) incorrectly rejected the decision of the High Court that the state was vicariously liable. This article argues that the SCA should have upheld the decision of the High Court on the basis of the factors that point to a close connection between the conduct of the policeman and his employment. The factors include that the actions of the policeman violated the rights of his victims and that the nature of his employment presented him with an opportunity to commit the crime. The failure of the SCA to consider these factors and uphold the decision of the High Court is therefore at odds with the Bill of Rights and contrary to the law of vicarious liability as developed by the Constitutional Court.

scholarly journals EXTRA-CURIAL STATEMENTS BY A NON- TESTIFYING CO-ACCUSED, THE CANADIAN SUPREME COURT AND CHANGE IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
BC Naudé
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Common Law ◽  
Constitutional Court ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal

In S v Ndhlovu (2002 (2) SACR 325 (SCA)), the court opened the door to the admissibility of extra-curial statements made by a non-testifying accused against a co-accused as hearsay in terms of section 3 of the Law of Evidence Amendment Act (45 of 1988), if the interests of justice so require. However, first the Supreme Court of Appeal and later the Constitutional Court rejected such an approach.It is beyond the scope of this comment to repeat the arguments in favour of a discretionary approach for such statements, but it is submitted that there is scope for disagreement with the findings of both courts.Whitear points out that the provisions dealing with the admissibility of hearsay in the Law of Evidence Amendment Act (45 of 1988) were not declared unconstitutional by any court. The Supreme Court of Appeal found that section 3 of the Law of Evidence Amendment Act (45 of 1988) could not be used to admit the extra-curial statement of an accused against his co- accused because the interests of justice would never allow this. The Constitutional Court found that section 3 did not override the common-law rule prohibiting the admission of extra-curial statements against a co- accused since this would amount to unfair discrimination against an accused implicated by such admissions or confessions. Significantly, because it is stated in section 3 of the Law of Evidence Amendment Act (45 of 1988) that section 3 is subject to the “provisions of any other law”, the court decided that the common-law prohibition should prevail.Previously, however, the Supreme Court of Appeal has held that the “other laws” referred to in the Law of Evidence Amendment Act (45 of 1988) are alternative ways for admitting hearsay, and do not preclude the admissibility of hearsay in terms of section 3, even where there is another law that prohibits it. The court also referred with approval to S v Ndhlovu (supra) where it was explained that the very purpose of section 3 of the Law of Evidence Amendment Act (45 of 1988) was to “supersede the excessive rigidity and inflexibility – and occasional absurdity – of the common law position” by allowing for the admission of hearsay when the interests of justice so require. The admissibility of out-of-court statements by an accused against a co- accused is also dealt with differently in the United Kingdom (our relevant common law) today. Section 114(1)(d) of the Criminal Justice Act of 2003 makes it possible to admit the out-of-court statement of an accused against a co-accused as hearsay. However, the court in R v Y (supra par 57−62) did mention that this does not mean such statements should routinely be admitted without a consideration of the relevant factors mentioned in the Criminal Justice Act of 2003 and that, in the majority of cases, it will not be in the interests of justice to admit such statements, especially those made during police interviews.Even though, under South African law, it is not currently possible to present evidence of an extra-curial statement made by an accused that also implicates a co-accused, the recent judgment by the Canadian Supreme Court in R v Bradshaw (2017 SCC 35) provides insight into how this could possibly happen in future. It is thus useful to consider the Supreme Court’s decision.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

scholarly journals The Law Regarding Pension Interest in South Africa has been settled! Or has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
High Court ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
The Law ◽  
Court Of Appeal

This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. 

The King Reports and the common law in South Africa

2020 ◽  
Vol 11 (2) ◽  
pp. 167-172
Author(s):  
J. Michael Judin
Keyword(s):  
South Africa ◽  
Design Methodology ◽  
Common Law ◽  
Bill Of Rights ◽  
Content Type ◽  
The Supreme Court ◽  
Task Team ◽  
The Common ◽  
Court Of Appeal

Purpose This paper aims to discuss the King Reports and Codes and the development of South Africa’s common law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights. With decisions of the Supreme Court of Appeal being based on the King Code, the King Code is now an integral part of South Africa’s common law. Design/methodology/approach When the task team drafting King IV commenced their work, one of the important issues raised with Mervyn King, as Chairman, was the challenge to ensure that King IV was aligned to the now firmly entrenched common law principles taken from King I, King II and King III. It is believed that this has been achieved and it is hoped that King IV (and the subsequent King Reports that will inevitably follow because the corporate milieu keeps changing) continues to enrich South Africa’s common law. Findings The King Reports and Codes have been made part of South Africa’s common law. Originality/value This paper fulfils an identified need to study the King Report and Code, as it relates to South Africa’s common law.

scholarly journals ‘Not My Employee, Not My Liability’

2021 ◽  
Vol 32 (1) ◽  
pp. 25-49
Author(s):  
Carrie De Silva
Keyword(s):  
Supreme Court ◽  
Practical Interest ◽  
Case Law ◽  
The Body ◽  
Legal Principles ◽  
Vicarious Liability ◽  
The Supreme Court ◽  
Potential Impact ◽  
The Law ◽  
Court Of Appeal

In April 2020, the Supreme Court in WM Morrison Supermarkets plc v Various Claimants [2020] and Barclays Bank plc v Various Claimants [2020] overturned the decisions of the Court of Appeal in applying the law regarding vicarious liability of employees and others (and deciding in both cases that the defendant companies were not liable for the acts in question). The scope of responsibilities which the employment relationship brings, together with an awareness among many businesses of the classification worker, along with the more familiar employed/self-employed status, makes an examination of the outcomes and potential impact of these cases of wide, practical interest for those running businesses, large or small. The review concluded that there had been no dramatic change in the law but that the cases provide a measure of comfort to employers in something of a common-sense view being taken as to the scope of vicarious liability. They also add to the body of case law, helping to ensure that future issues can more clearly be reasoned out of court, with the detailed steer on the application of legal principles which a Supreme Court judgment provides.

scholarly journals DEFAMATION OF SCHOOL TEACHERS BY LEARNERS Le Roux v Dey 2011 3 SA 274 (CC)

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
J Neethling ◽  
JM Potgieter
Keyword(s):  
Secondary School ◽  
Supreme Court ◽  
Sexual Activity ◽  
Constitutional Court ◽  
School Teachers ◽  
High Court ◽  
The Supreme Court ◽  
Vice Principal ◽  
Court Of Appeal

In Le Roux v Dey a vice-principal at a well-known secondary school in Pretoria instituted two separate claims for sentimental damages under the actio iniuriarum for insult (infringement of dignity) and defamation (infringement of reputation) against three school learners. The defendants published manipulated pictures of the plaintiff and the principal of the school depicting them both naked and sitting alongside each other with their hands indicative of sexual activity or stimulation. The school crests were superimposed over their genital areas. The plaintiff succeeded with both claims in the High Court (Dey v Le Roux 2008-10-28 case no 21377/06 (GNP)) butthe Supreme Court of Appeal (Le Roux v Dey 2010 4 SA 210 (SCA)) held that the separate claim for insult was ill-founded because in assessing damages for defamation, the court should also take the plaintiff’s humiliation into account. The Supreme Court of Appeal nevertheless confirmed the trial court’s award of R45 000. The defendants appealed to the Constitutional Court.

Bhasin v Hrynew - The New Duty of Good Faith in Contract

1969 ◽  
Author(s):  
Brittany Scott
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
The Past ◽  
Legal Traditions ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Over the past number of years, the law surrounding the requirement to operate in good faith in conducting contractual obligations has been a developing principle in common law countries from Australia, to the United Kingdom to Canada. In Canada, this principle has developed separately within the civil and common law legal traditions respectively. While the Quebec Civil Code has historically provided for an expectation of parties to a contract to operate in good faith, the common law in Canada has not been as clear.  Prior to 2014, the Canadian common law duty to negotiate in good faith was an unsettled body of law, recognized in certain areas, but not across the discipline as a whole. It has only been since the Supreme Court of Canada decision in Bhasin v. Hrynew that this duty to negotiate in good faith has been outlined as a coherent set of guiding principles. Parties to a contract are now both bound by a general organizing principle of good faith in contracts and are expected to act honestly in the performance of their contractual obligations. While new to the Canadian common law, numerous cases have been quick to test the court’s interpretation of this change in scope to the law of good faith. As Canadian common law jurisprudence moves forward, this principle will continue to expand and develop.

2. Sources of employment law and institutions

2019 ◽  
pp. 24-45
Author(s):  
Stephen Taylor ◽  
Astra Emir
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Health And Safety ◽  
Employment Law ◽  
European Court Of Justice ◽  
High Court ◽  
European Court ◽  
The Supreme Court ◽  
The Common ◽  
Court Of Appeal

This chapter discusses the sources of UK employment law and relevant institutions, and looks at court structure. The main source is statutes—Acts of Parliament, regulations and EU law. The common law is judge-made and has evolved over centuries as cases are brought to court and appealed up through the court hierarchy. The laws of contract, trust and tort all play a part in employment regulation. Most cases relating to common law matters are brought to the County Court or the High Court. Employment tribunal cases can be appealed to the Employment Appeals Tribunal (EAT) and then the Court of Appeal, the Supreme Court and, if concerning an EU matter, to the European Court of Justice. Other important institutions in the employment law include the Advisory, Conciliation and Arbitration Service (ACAS), the Equality and Human Rights Commission (EHRC) and the Health and Safety Executive (HSE).

6 South Africa: From Constitutional Promise to Social Transformation

2007 ◽  
Author(s):  
Klug Heinz
Keyword(s):  
South Africa ◽  
Social Transformation ◽  
Democratic Transition ◽  
Customary Law ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
Constitutional Democracy ◽  
Constitutional Amendments ◽  
The Common ◽  
Democratic Elections

South Africa's emergence as a constitutional democracy after four decades of apartheid and nearly three centuries of colonialism is rightly heralded as a miracle. With 243 sections and seven schedules, the constitution of South Africa also represents an attempt to constitutionalise all the hopes, fears, and conflicts of its democratic transition. This process is epitomised by the two-stage constitution-making process in which the conflicting parties first negotiated an ‘interim’ constitution and then, after democratic elections, empowered the new Parliament to sit as a constitutional assembly in order to produce a ‘final’ constitution. This chapter describes South Africa's constitution, the union and apartheid constitutions, democratic transition, constitutional principles, the 1993 interim constitution, regionalism and cooperative governance, rule of law and the Bill of Rights, amending procedures, Constitutional Court, sources of constitutional interpretation, constitution as statute, modes of interpretation, duty to develop the common law and customary law, internal directives for interpretation, problems of interpretation, certification and the problem of future constitutional amendments, and legal legacies and popular experience of the law.

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

2021 ◽  
Vol 138 (3) ◽  
pp. 508-521
Author(s):  
Tshepo H Mongalo
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
Common Law ◽  
Corporate Law ◽  
Constitutional Court ◽  
Statutory Interpretation ◽  
Policy Makers ◽  
The Supreme Court ◽  
The Common ◽  
Court Of Appeal

This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.

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