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

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.