However in certain circumstances society deems it appropriate that someone be

However in certain circumstances society deems it

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able for the consequences of the conduct of another person. However, in certain circumstances society deems it appropriate that someone be held liable for the conduct of another. In this regard the Court must bear in mind our constitutional values. [152] In K this Court described the character of vicarious liability as “the policy-laden character of vicarious liability.” 133 Through O’Regan J this Court said about vicarious liability: “Despite the policy-laden character of vicarious liability our courts have of- ten asserted, though not without exception, that the common law principles of vicarious liability are not to be confused with the reasons for them and that their application remains a matter of fact. If one looks at the principle of vi- carious liability through the prism of section 39(2) of the Constitution, one realises that characterising the application of the common-law principles of ________________________ 131 What I refer to as the Rabie test is the test found in Minister of Police v Rabie [1985] ZASCA 105; 1986 (1) SA 117 (A) at 134C–E [also reported at [1986] 1 All SA 361 (A) – Ed]. 132 See Thebus above fn 1 at para [19], which is quoted in para [128]. 133 K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC) at para [22].
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JACOBS v S 602 2019 (5) BCLR 562 (CC) ZONDO DCJ A B C D E F G H I J vicarious liability as a matter of fact untrammelled by any considerations of law or normative principle cannot be correct. Such an approach appears to be seeking to sterilise the common law test for vicarious liability and purge it of any normative or social or economic considerations. Given the clear policy basis of the rule as well as the fact that it is a rule developed and applied by the courts themselves, such an approach cannot be sustained under our new constitutional order. This is not to say that there are no circumstances where rules may be applied without consideration of their normative content or so- cial impact. Such circumstances may exist. What is clear, however, is that as a matter of law and social regulation, the principles of vicarious liability are principles which are imbued with social policy and normative content.” 134 (Footnotes omitted.) [153] In relation to the doctrine of vicarious liability, in K this Court held that “[t]he courts, bearing in mind the values the Constitution seeks to pro- mote, will decide whether the case before it is of the kind which in princi- ple should render the employer liable.” 135 In respect of the doctrine of common purpose I would say that, in a case where there is no prior agreement, a court, bearing in mind the values the Constitution seeks to promote, will decide whether the case before it is of the kind which in principle should render the accused criminally liable for the conduct of another person on the basis of a common purpose. [154] The applicants contend that the doctrine of common purpose was not properly applied by the Trial Court and the Full Court. As the doctrine of common purpose is based on public policy, its proper application by a court includes the Court bearing in mind the values contained in our Con- stitution. Therefore, the applicants’ complaint that the lower courts did
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