O’REGAN J
least, therefore, the principles of vicarious liability and their application needs to be
developed to accord more fully with the spirit, purport and objects of the Constitution.
This conclusion, however, should not be misunderstood to mean anything more than
that the existing principles of common-law vicarious liability must be understood and
applied within the normative framework of our Constitution, and the social and
economic purposes which they seek to pursue. Nor does this conclusion mean that an
employer will be saddled with damages simply because injuries might be horrendous.
Rather, it implies that the courts, bearing in mind the values the Constitution seeks to
promote, will decide whether the case before it is of the kind which in principle should
render the employer liable. Whether the principles of vicarious liability themselves,
as currently applied by the courts, require development beyond an acceptance of the
normative character of their provenance and application will be considered later. I
turn now to consider the existing principles of vicarious liability.
The common-law principles of vicarious liability
[24]
The general principle of vicarious liability holds an employer responsible for
the wrongs committed by an employee during the course of employment. The courts
have held that as long as the employee is acting “within the course and scope of his or
her duty”28 or is “engaged with the affairs of his master” that the employer will be
and all organs of state within each sphere to provide effective, transparent, accountable and coherent
government. See Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2)
SA 359 (CC); 2005 (4) BCLR 301 (CC) at paras 74-78.
28
See, for example, Jordaan v Bloemfontein Transitional Local Authority and Another 2004 (3) SA 371 (SCA)
at para 3; Bezuidenhout above n 20 at para 3; Minister Van Veiligheid en Sekuriteit v Phoebus Apollo Aviation
BK 2002 (5) SA 475 (SCA) at para 5; Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) at
para 3; Ess Kay above n 24 at para 7; ABSA above n 25 per Zulman JA at para 5; Minister of Safety and Security
v Jordaan t/a Andre Jordaan Transport 2000 (4) SA 21 (SCA) at para 5; Sea Harvest Corporation (Pty) Ltd and
18
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