Your essay must not exceed 2 pages.

Question

• When answering questions, refer to any relevant case law that may be relevant.
• Your opinions must be written in accordance with the stylistic guide of the Journal for
Juridical Science and must be equipped with references (footnotes).
QUESTION
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 impact on various aspects of the legal system, including the concept of vicarious liability in the context of delicts committed by employees. This essay will discuss the influence of the Constitution on the requirement that an employee must act within the scope of their employment for an employer to be held vicariously liable, with reference to relevant case law.

Vicarious liability is a legal principle that holds an employer accountable for the wrongful acts committed by an employee during the course of their employment. Traditionally, the requirement for an employer to be held vicariously liable was that the employee must have acted within the scope of their employment. This meant that if the employee's actions were unauthorized or sufficiently disconnected from their employment, the employer would not be held responsible.

However, the Constitution of 1996 ushered in a new era of jurisprudence that prioritizes equality, dignity, and the protection of fundamental rights for all individuals. This has had an impact on various areas of the law, including the concept of vicarious liability.

One of the influential cases that highlights the influence of the Constitution on the requirement of acting within the scope of employment is in Minister of Safety and Security v Van Duivenboden. In this case, the Constitutional Court acknowledged that the common law requirement of acting within the scope of employment is too restrictive, as it may limit access to compensation for victims of delicts committed by employees. The Court emphasized that the Constitution requires a more just and equitable system of compensation and held that employers should be held vicariously liable for the wrongful acts committed by their employees, even if those acts fall outside the scope of employment.

The Court further held that the test for vicarious liability should not be confined to a narrow scope, but should take into account the nature of the employment relationship and the broader factors of fairness, justice, and public policy. The key consideration is whether there is a close connection between the wrongful act and the nature of the employment relationship, rather than simply focusing on the authorized scope of employment.

Another noteworthy case is K v Minister of Safety and Security, where the Constitutional Court held that the state cannot escape vicarious liability for the wrongful acts of its employees on the basis that the acts were unauthorized or fell outside the scope of employment. The Court reiterated that the Constitution requires a more expansive approach to vicarious liability in order to ensure access to justice for victims of delicts committed by state employees.

These cases demonstrate that the Constitution of 1996 has influenced the requirement that an employee must act within the scope of their employment for an employer to be held vicariously liable. The focus has shifted from a narrow and restrictive scope to a broader analysis that considers the nature of the employment relationship and the principles of fairness and justice. This ensures that victims of delicts committed by employees have access to compensation and promotes a more just and equitable legal system.

In conclusion, 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. The courts have recognized that the Constitution requires a more just and equitable approach to vicarious liability, which takes into account the nature of the employment relationship and the principles of fairness and justice. This ensures that victims of delicts committed by employees have access to compensation and promotes the protection of fundamental rights as enshrined in the Constitution.