O’REGAN J failure to protect Ms K from harm. The respondent opposes the application for leave to appeal. A constitutional issue? [12] The first question that arises is whether the matter raises a constitutional issue. The respondent argues that it does not, at least to the extent that the case concerns the application of the principles of vicarious liability. It relies on this Court’s judgment in Phoebus Apollo Aviation CC v Minister of Safety and Security.5 In that case the appellant had sought to hold the Minister of Safety and Security liable in delict for damages arising from the theft by certain policemen of property of the appellant. It was common cause that the appellant was robbed of a large sum of money by an armed gang. The investigating officer traced the proceeds of the robbery but when he arrived he discovered that the money had already been taken by three dishonest policemen. It was not clear where these three policemen had come by the information concerning the location of the stolen money, but it was clear that they had not been responsible for the investigation of the robbery, nor had they been on duty when they went to recover it, nor had they been in uniform although they had induced the man guarding the money to hand it over because they were policemen. [13] The appellant in that case did not argue either that the rules of vicarious liability were in conflict with the Constitution or that they failed to give effect to the spirit, purport and objects of the Bill of Rights. In the light of this and on the facts of 5 2003 (2) SA 34 (CC); 2003 (1) BCLR 14 (CC). 7