O’REGAN J remains a matter of fact.25 If one looks at the principle of vicarious liability through the prism of section 39(2) of the Constitution, one realises that characterising the application of the common-law principles of vicarious liability as a matter of fact untrammelled by any considerations of law or normative principle cannot be correct. Such an approach appears to be seeking to sterilise the common-law test for vicarious liability and purge it of any normative or social or economic considerations. Given the clear policy basis of the rule as well as the fact that it is a rule developed and applied by the courts themselves, such an approach cannot be sustained under our new constitutional order. This is not to say that there are no circumstances where rules may be applied without consideration of their normative content or social impact. Such circumstances may exist. What is clear, however, is that as a matter of law and social regulation, the principles of vicarious liability are principles which are imbued with social policy and normative content.26 Their application will always be difficult and will require what may be troublesome lines to be drawn by courts applying them. [23] Denying that the principles bear such normative implications will only bedevil the exercise by rendering inarticulate, premises that in a democracy committed to openness, responsiveness and accountability27 should be articulated. To this extent, at 25 See, for example, Bezuidenhout above n 20 at para 23; Minister van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors 2002 (5) SA 649 (SCA) at para 1; ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 (1) SA 372 (SCA) per Zulman JA at para 5. 26 See the South African authorities above n 23; Bazley above n 22; Jacobi above n 22, and at paras 13-19 (per McLachlin J, dissenting); London Drugs Ltd v Kuehne & Nagel International Ltd [1992] 3 SCR 299 at 336f339h; Lister and others v Hesley Hall Ltd [2002] 1 AC 215 (HL) per Lord Millet at para 65. See also Fleming above n 21; Atiyah above n 21, at 171-2; Heuston and Buckley Salmond & Heuston on the Law of Torts 21 ed (Sweet & Maxwell, London 1996) at 431. 27 Section 1(d) of the Constitution requires government to be committed to accountability, responsiveness and openness. This commitment is affirmed in sections 41(1)(c) and 195, which oblige all spheres of government 17