The Constitutionally Inspired Approach to Vicarious Liability in Cases of Intentional Wrongful Acts by the Police: One Small Step in Restoring the Public’S trust in the South African Police Services

Abstract

This article explores the potential impact of the courts’ approaches to vicarious liability in so-called ‘frolic’ cases on the transformation of the South African Police Services. Does the law of vicarious liability foster respect for the rule of law and for the custodians of the rule of law and further the goals of South Africa’s democratic transition? The answer to this question depends greatly on one’s theory or approach to vicarious liability and this is heavily influenced by the world-view underlying and supporting the law of delict and the private common law in general. In oversimplified form, the contrast is between a conservative and narrow reading of ‘scope of employment’ which is fostered by a libertarian approach and a more broad or copious reading fostered by a post-liberal approach. The decisions of the Supreme Court of Appeal and the Constitutional Court in K v Minister of Safety and Security case are used to illustrate and evaluate the world-view and values that have supported the conservative approach to vicarious liability in this area and to contrast them with a new world view and set of values that underlie the new constitutional order and which justify the more copious approach. The more generous approach more closely coheres with the values and aspirations of South Africa’s democratic transformation and is one small step both in holding the Police Services accountable and in restoring the public's trust in them and in the rule of law.