FRONEMAN J replaced by the Crown Liabilities Act,12 and then by the State Liability Act,13 which still applies today. Within that pre-constitutional statutory framework the courts developed the delictual liability of the state from the total exclusion of liability when a public servant acted in the fulfilment of a statutory or common law duty, 14 through exclusion only when the state official had a discretion to perform the duty and was thus not under the control of the state,15 to later decisions where the control test merely became one of the factors to be considered in determining liability. 16 [98] The development of the law of state delictual liability is thus nothing new. The decision in K brought state delictual liability within the ethos of our new constitutional framework, but still within the traditional framework of vicarious liability. [99] Is the language of vicarious state liability still necessary? I think not. Even before the advent of the Constitution cogent doubt was expressed about whether vicarious liability was appropriate: ―The model of vicarious liability is completely inadequate to provide for public compensation when damage is caused by officials acting unlawfully and culpably because when exercising their powers officials are not acting on behalf of their employers (the executive) at all; at best (if we are to personify institutions) they act on behalf of the legislature. In short, an employer/employee situation does not exist 12 1 of 1910. 13 20 of 1957. 14 See British South Africa Co v Crickmore 1921 AD 107 at 120-1. 15 See Union Government (Minister of Justice) v Thorne 1930 AD 47 at 51 and 53. 16 Starting with Mhlongo and Another NO v Minister of Police 1978 (2) SA 551 (A) (Mhlongo) at 567-8. See also Minister van Polisie en ’n Ander v Gamble en ’n Ander 1979 (4) SA 759 (A); Minister of Police v Rabie 1986 (1) SA 117 (A) and the cases referred to in n 26 and n 30 of the main judgment. 39