FRONEMAN J [88] The main judgment holds the state liable on the basis of vicarious liability, as in K. There can be little doubt that K was written in the language of vicarious liability. I also accept that if vicarious liability is the only way in which the normative ‗close connection‘ test in K may be applied, then I am bound by its exposition and application in the main judgment. To that extent I thus concur in its reasoning and outcome. In my respectful view, however, the normative considerations expounded in K are also capable of supporting a similar outcome based not on vicarious liability, but on direct liability. [89] It should be recognised that the bold, important and necessary steps taken in K are unduly constrained by the language of vicarious liability. 2 We should recognise that state delictual liability in circumstances where the state has a general constitutional and statutory duty to protect people from crime is usually ‗direct‘, and not ‗vicarious‘ in the sense traditionally understood by that term. This is because the state invariably acts through the instrument of its organs – state officials performing public duties. The difficult normative issue of when the state is liable in delict for their conduct should in my view no longer be dealt with as an aspect of vicarious liability but rather as part of the normal direct enquiry into whether the elements of our law of delict are present when instruments of the state act. To do so would still be 2 The decision in K attracted much comment, both critical and favourable. See, for example, Neethling and Potgieter ―Middellike Aanspreeklikheid van die Staat vir Verkragting deur Polisiebeamptes‖ (2005) TSAR 595; Scott ―K v Minister of Safety and Security 2005 6 SA 419 (CC)‖ (2006) De Jure 471; Wagener ―K v Minister of Safety and Security and the Increasingly Blurred Line Between Personal and Vicarious Liability‖ (2008) 125 (4) SALJ 673; Fagan ―The Confusions of K‖ (2009) 126 (1) SALJ 156; and Du Bois ―State Liability in South Africa: A Constitutional Remix‖ (2010) 25 Tulane European and Civil Law Forum 139. 34