The application of the principles of vicarious liability in Minister of Safety and Security v Morudu : a critical analysis

• Published date: 01 October 2018
• Pages: 1-14
• DOI: 10.10520/EJC-12220d5f30
• Record Number: sapr1_v33_n1_a5
• Date: 01 October 2018
• Author: Themba Maseko

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/2951

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 33 | Number 1 | 2018 | #2951 | 14 pages

© Unisa Press 2018

The Application of the Principles of Vicarious Liability

in Minister of Safety and Security v Morudu: A Critical

Analysis

Themba Maseko

Vaal University of Technology

Email: thembinkosim@vut.ac.za

Abstract

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.

Keywords: vicarious liability; Constitution; Bill of Rights; normative considerations;

employment; deviation