We submit that there is no merit in any of the applicant’s arguments and that it is not in the interests of justice to grant the applicant leave to appeal9. This submission is premised on the splitting of the conduct of the perpetrators into commissiones (the rapes and assaults) and omissiones (the failure of each to prevent the other two from raping the applicant). See also AS 21 and the part of the applicant’s submissions dealing with the foreign law.
These decisions are referred to as the “Van Duivenboden line of cases” in paragraph 53 (fn 63) of the applicant’s submissions. 6] However, it appears from the papers before this Court that the applicant did not raise crisply the question of the common law principles governing the admissibility of the Rev. This court does not have the benefit of the views of those Courts on the issues now raised.
Apart from these facts, reference was made to the prosecution of the perpetrators, their convictions and sentences. In the circumstances we submit that this court should not sit as a court of first instance relating to the question whether the state is not perhaps directly liable for the breach of the alleged duties. The main thrust of the applicant’s submission in this respect may be reduced to the proposition that the SCA erred in its application of the standard test for vicarious liability to the facts36.
Although the applicant may not have known of the prohibition, the test is objective and her subjective knowledge is irrelevant. It is submitted that on a conspectus of the facts there can be no doubt that the police officials were not about police business when they raped and assaulted the applicant. No constitutional matter or issue has been raised in respect of the application of the standard test by the SCA.
We consequently submit that any invitation by the applicant to this court to re-adjudicate the application of the standard test to the facts should be declined. There are two issues relating to the splitting of the conduct of the perpetrators into positive and negative acts. The first aspect is whether the applicant is correct in her submission that the conduct of the perpetrators can indeed be split into these two components.
The same legal results (such as for example vicarious liability) arise, whatever the nature of the act may be. As pointed out above, the most important premise of the applicant’s submissions is that the conduct of the perpetrators had the quality of both positive acts and negative acts. There was no factual chain of causation between the conduct of the perpetrators and the applicant’s loss or damages.
We deal in more particulars below with the jurisdiction of this court relating to the development of the common law.
In Phoebus Apollo Aviation CC v Minister of Safety and Security 55 Justice Kriegler said the following in paragraph [9]
The applicant invites the court to take cognisance of developments in the Anglo American legal family regarding the development of the test of vicarious liability57. Vicarious liability as developed in that legal system must be seen against the background of the strength and weaknesses of the tort concept. The employers of the employees all had duties recognisable in law to protect the victims against precisely the types of crimes the perpetrators committed.
She climbed into the vehicle because she wanted to benefit from the kindness of the three men who had. Almost half of the applicant’s argument is devoted to an overview of judgments in the Anglo American legal family. In the eighth circuit of the US Court of Appeal the only question relating to vicarious liability was whether the doctrine of.
The majority (six judges) found that apparent authority is not a basis for vicarious liability in the State of South Dakota and that the rape was not within the scope of the employment of the perpetrator. The only foreign judgment with facts similar to those of the present case was thus decided against the proposition which the applicant seeks to establish. Ostensible or apparent authority of the employee and trust are not objective factors that sway the scale in our law towards the establishment of vicarious liability.
Yet if he is not about the business of the defendant, he cannot bind the defendant. This aspect was not raised by counsel in argument but it must be mentioned that in England the course of an employee’s employment is determined, in the case of vicarious liability for fraud, by such employee’s authority: see Lloyd v Grace Smith & Co [1912] AC 716 and Armagas Ltd v Mundogas SA [1986] AC 717, both being decisions of the House of Lords. 59 The judgment referred to in para 45 of the submissions of the applicant is the judgment of an appeal panel given in 1996.
However, as indicated already, the plaintiffs, represented by Primalani, relied on nothing but the faxes and the reputation of the defendant. Some rules of the common law provide for straight forward factual tests whilst others require the exercise of a judicial discretion or the imputation of liability. Van Zyl J sought to introduce a flexible test to the “prejudice principle” in place of the existing factual one.
In Thebus 63 it was pointed out that the need to develop the common law could arise in at least two instances
In any event, the essential question at this stage is whether the court has the jurisdiction to develop the common law. In Thebus63 it was pointed out that the need to develop the common law could arise in at least two instances. Then the common law must be adapted so that it grows in harmony with the “objective normative value system” of the Constitution.
Can it be argued that the factual nature of the rule relating to vicarious liability should be changed into a normative one to bring it in line with the spirit of the Constitution. Not every factual test, not every fixed yardstick that was developed in the common law and applied by our courts, can be replaced with a normative imputation-type test. The result of a system of such massive flexibility would be that there would be no certainty as to the content of the rules of law.
We specifically submit that the test that has been developed in the common law is not inconsistent with the principles of the Constitution and that it does not fall short of the spirit, purport and objects of the Constitution. Put differently, in order to succeed with a change of the common law rule, what has to be shown as factum probandum is that the rule itself controverts the Constitution in some way. It is not adequate to show that the independent delict committed by the perpetrators breached a consti- tutionally protected right of the applicant.
The breach of her rights is not one of the facta probantia required to show why the rule is inconsistent with the Constitution. It is thus submitted that this court does not have jurisdiction to do away with the present common law test for vicarious liability and to fashion another in its place. Moreover, this court has concurrent jurisdiction with the High Courts and the SCA in constitutional matters which involve the development of the common law.
Although this court has the jurisdiction to hear matters that concern the constitutionality of a common law rule, it is inappropriate to initiate a matter involving the development of the common law under section 39(2) of the Constitution in this court. The High Court, and after that the SCA, should have been granted the opportunity to consider the change of the rule. That did not happen in this matter and this court is now approached for the first time with the argument that the common law rule should be abandoned in favour of one that must still be described.
