O’REGAN J can be said that in doing what he or she did the employee was still exercising the functions to which he or she was appointed or was still carrying out some instruction of his or her employer. If the answer is yes, the employer will be liable no matter how badly or dishonestly or negligently those functions or instructions were being exercised by the employee.”3 The Court held that on this test the Minister could not be held liable for the rape of the applicant. The Court also rejected arguments that the common-law rule should be developed in the light of the spirit, purport and objects of the Constitution and an argument that the Minister was liable because at the time of the rape, the policemen were simultaneously failing to perform their duty to protect the applicant. In ending, Scott JA noted that he had the “deepest sympathy for the appellant” but held that providing her with compensation was a matter for the Legislature and not the courts.4 [10] The applicant now seeks leave to appeal to this Court. The application for leave to appeal [11] The applicant bases her appeal on three arguments: the first is that the Supreme Court of Appeal erred in its application of the standard, common-law test for vicarious liability; the second is that if the Supreme Court of Appeal did not err in its application of the test, that test should be developed in the light of section 39(2) of the Constitution as the result does not accord with the spirit, purport and objects of the Constitution. The third argument is that the state should be held directly liable for its 3 K v Minister of Safety and Security 2005 (3) SA 179 (SCA) at para 4. 4 Id at para 10. 6