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VICARIOUS LIABILITY

One of the sacrosanct principles of our common Law, is the issue of vicarious liability. This principle, simply stated, is that an employer becomes liable for the acts of his employee performed whilst the employee is acting in the course and scope of his employment with the employer. A principal is also liable for the acts of his agent performed whilst the agent is acting in the course and scope of his agency with the Principal. The issue of vicarious liability extends both to delictual and contractual acts. Perhaps the principle just defined could best be illustrated by citing examples.

Mr Jones employs the services of Mr Sibiya to act as his driver. Mr Sibiya whilst driving Mr Jones's vehicle and transporting him to a meeting, enters an intersection in the face of oncoming traffic and has an accident. The accident is caused by his negligence in him having entered the intersection when it was not safe for him to do so. Because the accident and the negligent act occurred whilst in the course and scope of Mr Sibiya's employment with Mr Jones, liability for the negligent action of Mr Sibiya is extended to Mr Jones.

Mr Brown engages the services of XYZ Estate Agency to find a tenant to occupy his house. XYZ Agency finds a Tenant and enters into a Lease with the Tenant. In drawing up the Lease XYZ Estate Agency inserts a clause to the effect that business rights attach to the property but in truth and in fact they do not. The Tenant wants to conduct the business of an auditing practice from the property but cannot now do so because business rights do not attach to the property. Of course the Estate Agency is liable for the damages sustained by the Tenant who is precluded from using the property for the purposes he wanted but so is Mr Brown as the acts leading to the claim for damages were performed by the Agency in the course and scope of such agency.

In the first example the claim against Mr Jones is a claim based on delict and in the second example the claim is based on breach of contract arising out of a misrepresentation of the true facts.

This principle of vicarious liability was the subject of much debate and received comment from our Chief Justice in the case of

MINISTER OF SAFETY AND SECURITY VS ALLISTER ROY LUITERS handed down by the Constitutional Court on the 30 th November 2006, in the yet to be reported decision under case number CCT23/06.

The facts of this case were that Mr Luiters was most severely injured and permanently disabled when on the 14 th October 1995, he was shot from behind by a Police Constable. On the night in question the Police Constable was not on official duty but it was found that he shot Mr Luiters with his service firearm whilst trying to apprehend two robbers. Mr Luiters then sued the Minister of Safety and Security (“ the Minister”) claiming payment of the damages he sustained as a result of him having been shot by Mr Luiters who was a constable in the employ of the Minister. The claim was based on the principle of vicarious liability.

The Cape High Court after hearing evidence held the Minister to be vicariously liable for the unlawful conduct of the Constable. The presiding Judge found that the Constable had subjectively intended to act as a policeman which meant the Minister was liable. Simply put, the Constable in attempting to apprehend robbers and whilst in pursuit of that motive used his service firearm and shot Mr Luiters, had in his own mind intended to act as a Policeman, and by his conduct he had placed himself on duty.

The Minister was unhappy with this ruling and took the matter to the Supreme Court of Appeals which confirmed the finding of the Presiding Judge in the High Court and dismissed the Appeal.

The Minster, still most unhappy, then took the matter to the Constitutional Court . The Chief Justice, whose finding was supported by all the other Constitutional Court Justices, found in favour of Mr Luiters. The Chief Justice found that there was no compelling reason (or indeed no reason at all) why off duty Police Officers who have placed them selves on duty should be subject to a different level of scrutiny than a Police Officer who is on duty. The test, so the Court held, must apply to all Police Officers irrespective as to whether they are acting on or off duty.

The principle of vicarious liability applies to the employers of Police Officers who commit acts on or off duty which render their employer liable.

The hapless Police Constable was convicted on eight counts of attempted murder and is effectively serving an eleven year prison sentence but the Minister must now compensate Mr Luiters.

By way of explanation of an issue outside the scope of this treatise, but most worthy of mention, is the observation that eleven years after the above incident Mr Luiters has not yet been compensated because of the inordinate length of time it has taken for this issue to be determined even taking into account that it has been fully ventilated in Three Courts. In his judgment the Chief Justice commented that such delay is undesirable. He stated that whilst the Courts have a duty to fully explore all the facts and issues before it, of equal importance, is the duty to finalise these matters as quickly as possible.

In the conduct of our practice, which is, by and large, the pursuit of litigation, we are often confronted with complaints as to why matters take so long to finalise. It must be appreciated that we are bound to comply with practices and procedures set out in Court Rules and Practice directives. The process is slow, and the facts of the Luiters case analysed above are a clear indication of this slow process and of the need to hasten the process. It might be said by cynics that it may be naieve of us to express the hope that the remarks of the Chief Justice, supported by his colleagues comprising his Bench, are taken seriously by the Powers that be, in trying to facilitate the speedy resolution of these matters.

DATED AT JOHANNESBURG ON THIS 17 TH DECEMBER 2006

 

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