Discuss the influence of the Constitution of the Republic of South Africa of 1996 on the 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 his/her employment for an employer to be held vicariously liable for a delict committed by such employee. This influence is most evident in the interpretation and application of Section 39(2) of the Constitution, which requires courts to promote the values and rights enshrined in the Constitution when developing the common law.

Before the Constitution of 1996, the common law principle of vicarious liability in South Africa followed the traditional approach known as the "control test." According to this test, an employer would be vicariously liable for the delict committed by an employee only if the employee was acting within the scope of his/her employment and under the control of the employer at the time of the delict. This approach provided a limited scope of liability for employers and tended to protect them from being held accountable for the wrongful acts of their employees.

However, the Constitution of 1996 introduced a paradigm shift in South African law by emphasizing the importance of human rights, equality, and social justice. In line with this transformative ethos, the Constitutional Court has recognized the need to reinterpret the common law principles to comply with the Constitution's purpose and to align them with constitutional values.

In the case of K v Minister of Safety and Security (2005), the Constitutional Court examined the control test of vicarious liability and held that it did not adequately address the constitutional principle of accountability. The court emphasized the need to consider other factors beyond mere control in determining vicarious liability. It introduced a new test known as the "test of close connection."

According to the test of close connection, an employer may be held vicariously liable for the delict committed by an employee if there is a close connection between the wrongful act and the employee's employment in line with the circumstances of the case. This approach allows for a more flexible interpretation of vicarious liability and takes into account the broader social and constitutional context.

The case of Minister of Police v Rabie (2008) further clarified the application of the test of close connection. In this case, the court emphasized that a consideration of the employee's motives and the nature of his/her wrongful act is essential. If the wrongful act was committed for personal motives, and not in the course and scope of employment, then vicarious liability may not be imposed. However, if the wrongful act was closely connected to the employment, even if it amounted to an abuse of authority, vicarious liability may still be imposed.

Overall, the influence of the Constitution of the Republic of South Africa of 1996 on the requirement for an employee to act within the scope of his/her employment for an employer to be held vicariously liable is evident in the development of the test of close connection. This test allows for a more nuanced consideration of the circumstances and aligns with the constitutional values of accountability and social justice.