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 doctrine of vicarious liability is easy to define but difficult to apply. In the recent Zimbabwean case of Fawcett Security Operations (Pot) Lid. v. Omar Enterprises (Pvt) Ltd., the Supreme Court held that a security company (the employer) who provided a security guard (the servant) to detect and prevent theft from the respondent's supermarket was not vicariously liable for the servant's subsequent theft of the very goods he was meant to guard. It is difficult to support this decision and its indirect effect is to call for a re-examination of this part of the law. Accordingly this article seeks to revisit the doctrine of vicarious liability under the Zimbabwean law of delict and to argue that (i) the decision in Fawcett Security was based on a wrong reading of the authorities; (ii) that the decision is inconsistent with the classical Roman-Dutch Law (as distinct from South African authorities); and (iii) that the decision fails to give effect to the real basis of vicarious liability under Zimbabwean law.

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The Dudley Lee Case: A new approach to factual causation and its implications for transformative jurisprudence

Southern African Public Law ◽

10.25159/2522-6800/3540 ◽

2017 ◽

Vol 30 (1) ◽

pp. 273-289

Author(s):

Anmari Meerkotter

Keyword(s):

Case Note ◽

Constitutional Court ◽

Recent Contribution ◽

New Approach ◽

State Accountability ◽

The Law ◽

Transformative Impact ◽

Constitutional Jurisprudence ◽

Law Of Delict

The Constitutional Court (CC) judgment of Lee v Minister of Correction Services 2013 2SA 144 (CC) is a recent contribution to transformative constitutional jurisprudence in the field of the law of delict. This matter turned on the issue of factual causation in the context of wrongful and negligent systemic omissions by the state. In this case note, I explore the law relating to this element of delictual liability with specific regard to the traditional test for factual causation – the conditio sine qua non (‘but-for’) test. In particular, I note the problems occasioned by formalistic adherence to this test in the context of systemic state omissions as evidenced by the SCA judgment in the same matter. I also consider the manner in which English courts have addressed this problem. Thereafter, I analyse the CC’s broader approach to the determination of factual causation as one based on common sense and justice. I argue that this approach endorses a break from a formalistic application of the test and constitutes a step towards an approach which resonates with the foundational constitutional values of freedom, dignity and equality. Furthermore, it presents an appropriate solution to the problems associated with factual causation where systemic omissions are concerned. I then consider the transformative impact of the Lee judgment. In particular, I argue that the broader enquiry favoured by the CC facilitates the realisation of constitutionally guaranteed state accountability, and amounts to an extension of the existing norm of accountability jurisprudence. Hence, I contend that the judgment presents a further effort by the Constitutional Court to effect wholesale the constitutionalisation of the law of delict, as well as a vindicatory tool to be used by litigants who have been adversely affected by systemic state omissions.

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Transforming the Law on Psychiatric Lesions

Stellenbosch Law Review ◽

10.47348/slr/2021/i2a4 ◽

2021 ◽

Vol 2021 (2) ◽

pp. 253-271

Author(s):

Emile Zitzke

Keyword(s):

Supreme Court ◽

Expert Witnesses ◽

The Supreme Court ◽

Psychological Harm ◽

The Law ◽

Constitutional Right ◽

Law Of Delict ◽

Court Of Appeal ◽

Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

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

South African Crime Quarterly ◽

10.17159/2413-3108/2014/v0i47a803 ◽

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.

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18. Employer’s Liability

Markesinis & Deakin's Tort Law ◽

10.1093/he/9780198747963.003.0018 ◽

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.

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15. Vicarious Liability

Tort Law: Text and Materials ◽

10.1093/he/9780198745525.003.0015 ◽

2017 ◽

Author(s):

Mark Lunney ◽

Donal Nolan ◽

Ken Oliphant

Keyword(s):

Employment Relationship ◽

Duty Of Care ◽

Independent Contractor ◽

Vicarious Liability ◽

The Law

The law of vicarious liability traditionally operates so as to impose liability on an employer for the tort of an employee, but several conditions must be satisfied. This chapter discusses the development of and justification for vicarious liability; the employment relationship and relationships ‘akin to employment’; and the requirement that the tort be committed in the course of employment for vicarious liability to arise. The chapter also considers primary liability of an employer for the conduct of an employee or independent contractor, arising out of breach of a non-delegable duty of care.

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X. Modelle objektiver Haftung im Deliktsrecht: Das schwerwiegende Erbe des römischen Rechts

Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Romanistische Abteilung ◽

10.7767/zrgra-2015-0113 ◽

2015 ◽

Vol 132 (1) ◽

Author(s):

Maria Floriana Cursi

Keyword(s):

Strict Liability ◽

Roman Law ◽

Vicarious Liability ◽

Injured Person ◽

Actual Nature ◽

The Family ◽

Liability Without Fault ◽

The Law ◽

Civil Codes

AbstractForms of strict liability in the law of delicts: The heavy legacy of Roman law. In Roman law there are two forms of delictual strict liability - i.e. liability for damages, regardless of the participation of the liable person to the harmful act. According to the first model, the pater familias / dominus is liable, because he is the only one in the family who can pay compensation. The second model is instead based on a reference to culpa in eligendo or in vigilando, and the strict liability is justified by the need to ensure an absolute protection of the injured person. The civilian tradition has built its theory of strict liability on this second model, speaking of culpa in vigilando or in eligendo even when - after the distinction between iniuria and culpa was introduced by Chr. Thomasius - strict liability was conceived as liability without fault. This has led to a gap, in the European civil codes, between the dogmatic construction of vicarious liability as subjective, because based on culpa, and its actual nature of objective liability, regardless of fault.

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