Discuss the influence of the Constitution of the Republic of South Africa of 1996 on the

Question

requirement that an employee must act within the scope of his/her employment for an
employer to be held vicariously liable for a delict committed by such employee. Refer to
applicable case law

Answer 1

The Constitution of the Republic of South Africa of 1996 has had a significant influence on the requirement that an employee must act within the scope of their employment for an employer to be held vicariously liable for a delict committed by such an employee.

Prior to the 1996 Constitution, the test for vicarious liability in South Africa was based on the common law principle of "course and scope of employment." Under this principle, an employer would only be held liable for the actions of an employee if those actions were committed in the course and scope of their employment. This was a narrow and restrictive test that often left victims without a remedy.

However, the 1996 Constitution introduced a fundamental shift in the legal landscape of South Africa. It enshrined a range of new rights and principles, including the right to equality, human dignity, and access to justice. These rights and principles have had a profound impact on various areas of law, including employment and vicarious liability.

The Constitutional Court, the highest court in South Africa for constitutional matters, has played a crucial role in shaping the interpretation and application of the new constitutional provisions in relation to vicarious liability.

One landmark case that illustrates the influence of the Constitution is Minister of Safety and Security v Van Duivenboden (2002). In this case, the Constitutional Court held that the old common law test for vicarious liability was inadequate and should be expanded to ensure access to justice and protect the rights of victims. The Court held that the focus should not only be on whether the wrongful act was committed during the course and scope of employment but also on whether there was a sufficiently close link between the wrongdoing and the employment relationship. This broader approach was justified by the need to promote constitutional values and protect the rights of victims.

Another important case in this context is K v Minister of Safety and Security (2005). In this case, the Constitutional Court reiterated the importance of considering the constitutional values and rights when determining vicarious liability. The Court emphasized that the test should ensure that employers are held accountable for the misconduct of their employees in a manner that respects the rights of victims and promotes justice and fairness.

These cases, among others, demonstrate how the Constitution of 1996 has had a transformative effect on the requirement that an employee must act within the scope of their employment for an employer to be held vicariously liable for a delict committed by such an employee. The Constitution has expanded the scope of vicarious liability to ensure access to justice, protect victims' rights, and promote constitutional values of equality and human dignity.