FRONEMAN J because those responsible for the omission are difficult to identify, or there may be several people responsible. Atiyah points out that ―[t]his is particularly relevant in dealing with the liability of groups of persons associated together in corporations, public authorities and such like.‖27 [108] Given this inherent tendency for overlap and potential conceptual difficulty, is there a different way forward for the delictual liability of the state, other than vicarious liability? Direct liability [109] The state is, in our law, a legal person.28 It can only act through the instrumentality of its organs and officials forming part of those organs. 29 Organs of state may only perform those functions that they are empowered to do by the Constitution and by legislation in conformity with it.30 The police service is an organ of the state and its members are subject to the specific constitutional and statutory 27 Id. 28 See, in general, Rautenbach and Malherbe Constitutional Law 5 ed (LexisNexis, Johannesburg 2009) at 105- 7. 29 Section 239 of the Constitution states in relevant part: ―‗organ of state‘ means— (a) any department of state or administration in the national, provincial or local sphere of government; or (b) any other functionary or institution— (i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer‖. 30 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at para 56. 43