O’REGAN J Application to facts of this case [45] The common-law test for vicarious liability in deviation cases as developed in Rabie’s case and further developed earlier in this judgment needs to be applied to new sets of facts in each case in the light of the spirit, purport and objects of our Constitution. As courts determine whether employers are liable in each set of factual circumstances, the rule will be developed. The test is one which contains both a factual assessment (the question of the subjective intention of the perpetrators of the delict) as well as a consideration which raises a question of mixed fact and law, the objective question of whether the delict committed is “sufficiently connected to the business of the employer” to render the employer liable. [46] The applicant’s counsel argued that in order to determine whether the respondent was vicariously liable for the harm the applicant suffered, it is necessary to bear in mind that the conduct of the policemen comprised both a commission which was wrongful, the rape of the applicant, and an omission which was also wrongful, the failure to protect the applicant from crime. The Supreme Court of Appeal rejected this argument in the following passage ─ “Counsel submitted, however, that a different test should be applied. He contended that once it was shown that the policemen were on duty when they gave the appellant a lift and that in offering to take her home safely they were acting within the course of their duties as policemen to prevent crime, then by the very act of deviating from those duties they rendered the respondent vicariously liable. In other words, it was the deviation itself that rendered the respondent liable and the degree of the deviation was wholly irrelevant. This is not the law and never has been; nor was counsel able 33