O’REGAN J what is “sufficiently close” to give rise to vicarious liability.40 It is in answering this question that a court should consider the need to give effect to the spirit, purport and objects of the Bill of Rights. [33] It is instructive to note, however, that the test applied in Rabie although frequently applied, has not always been followed. Indeed, in this case, the Supreme Court of Appeal formulated the test somewhat differently to the Rabie test. It said that the question to be asked is whether the deviation is of such a degree that it can be said the employee is still exercising the functions to which he or she was appointed or still carrying out some instruction of the employer. Variations of the test have proliferated, and have resulted in uncertainty.41 In my view, this is unsatisfactory. I shall return to the question of what the rule that should govern vicarious liability should be later in the judgment. First, it will be helpful to consider briefly the doctrine of vicarious liability as it has developed in other jurisdictions. The law of vicarious liability in other jurisdictions [34] As noted above, it is not only our law that has struggled to determine the proper ambit of the principles of vicarious liability and to apply them in a manner that is both 40 See above n 39. See also Rail Commuters above n 27 at para 60 and S v Basson 2005 (1) SA 171 (CC); 2004 (6) BCLR 620 (CC) at paras 50-53 as to the distinction between purely factual and mixed fact and law questions. 41 In a recent judgment of the Supreme Court of Appeal, as yet unreported, but drawn to our attention during the hearing, for example, the Supreme Court of Appeal formulated the test so as to ask whether the employee had failed to discharge a duty, and held vicarious liability to exist (Commissioner for the South African Revenue Service and Another v TFN Diamond Cutting Works (Pty) Ltd 070/04, 22 March 2005, at paras 8-9). Neethling’s review of the test indicates that it has mutated over the years (above n 21 at 402-3), and Scott’s statement that the courts have formulated specific rules from case to case bears out the protean character of the test (above n 21 at 133). 24