The doctrine of vicarious liability provides justification for a deviation from the general rule that fault is an indispensable requirement to attach liability to an individual. The doctrine provides that an aggrieved party may hold an employer liable for the wrongful or delictual conduct of its employees. The South African legal system inherited the doctrine of vicarious liability from common-law and the doctrine is deeply rooted in English-law. The South African legal sphere is subject to constant transformation and as a result hereof, the common-law doctrine of vicarious liability should also be subjected to transformation. Uncertainty reigned in relation to whether the judiciary or the legislature carried the burden to develop the doctrine of vicarious liability in order to accommodate the needs of a modern society. The doctrine of vicarious liability is a universal concept and the transformation that the doctrine has undergone in other common-law countries could prove to be useful guidelines to assist with the development of the doctrine within the South African legal context. The doctrine places a tremendous burden on employers by providing that employers can be held accountable for the unlawful and delictual actions of its employees. One of the stumbling blocks that the South African judiciary had to overcome was to determine in which instances the liability of employers should be restricted in relation to the conduct of their employees. It is common cause that the doctrine, due to its onerous nature, cannot be regarded as absolute. Perhaps one of the most significant restrictions that has been placed on the application of the doctrine has been the fact that employers may only be held accountable for the wrongful conduct of its employees in instances where the employee has acted within the scope of his or her employment. The dividing line between acts committed within the scope of employment and acts committed outside of the scope of employment is a very fine line and the judiciary tend to tread carefully upon pronouncing on such matters. The Constitution of the Republic of South Africa, 1996 reiterates the importance of ensuring that the constitutional values of reasonableness and fairness are adhered to. An aggrieved party would be left with deep scars in the event that the individual is prohibited from instituting an action against an employer for harm or loss suffered as a result of a wrongful action of an employee of that employer. The employer would suffer prejudice in the event that the employer is held accountable for the wrongful conduct of an employee which is unrelated to the business of the employer. The answer to the conundrum lies in striking a balance between the prejudice suffered by the aggrieved party and the prejudice suffered by the employer. The aim of the judiciary should be to ensure that restrictions made to the application and interpretation of the doctrine of vicarious liability would be justifiable and reasonable in terms of the Constitution. The balancing of the interests of the employer and the balancing of the interests of the aggrieved parties are essential to ensure that justice prevails. It is common cause that no general test exist in the South African legal sphere in order to determine the liability of an employer for the wrongful conduct of its employees. Due to the complex nature of the doctrine of vicarious liability it can be averred that a general test would not address the technicalities of the doctrine. An important consideration to determine the liability of an employer is to establish whether a sufficiently close connection existed between the duties of the employee and the wrongful conduct of the employee. This factor can be considered as the “golden thread” that must be present to determine the liability of the employer. The doctrine of vicarious liability is a concept which has proved to be imperative in the South African legal sphere. Employers should be held accountable for the wrongful conduct of its employees, but simultaneously the constitutional values of reasonableness and fairness should be adhered to. Even though vicarious liability is an onerous concept for employers, justice would prevail if the values of the Constitution are applied religiously.

The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers. / Abstract

LL.M. (Banking Law) / When a bank employee commits fraudulent acts within the course and scope of his employment, he renders the bank vicariously liable for his fraud. The logical conundrum is that since a bank never employs someone to commit fraud, and since fraud is thus never in this sense within the course and scope of his employment, should the bank never be liable for this fraudulent conduct? If this were the law, the public could potentially be defrauded with impunity, because those defrauded would be left only with a claim against a fraudster who likely has no assets. This dissertation examines the common-law doctrine of vicarious liability and illustrates the sometimes-haphazard manner in which courts have applied the underlying principle to the varying facts that arise. It will be shown that the application of the doctrine to cases involving fraud by bank employees is particularly inconsistent and unsatisfactory. It will be proposed that the solution lies in the development of the common law so as to promote the spirit, purport and objects of the Bill of Rights, and particularly section 25 of the Constitution. 2 This paragraph conceptualises the vicarious liability doctrine. Paragraph 2 considers the application of the doctrine by the courts, and points to inconsistencies in approach. The third paragraph deals briefly with the position in two common-law jurisdictions, Canada and Britain. The final paragraph proposes a solution to the observed inconsistencies: an employee acts in the course and scope of his employment for purposes of imposing vicarious liability when the employer’s right not to be arbitrarily deprived of his property in terms of section 25 of the Constitution is acknowledged, and his vicarious liability is limited to cases where there is a rational relationship between the employee’s fraudulent conduct and the scope of his employment, and not an arbitrary deprivation. In considering the South African cases, it readily becomes apparent that the courts have already instinctively adopted the approach of examining the nature and extent of the deviation by the employee from the scope of his employment, but have not done so in the context of the property clause ...

LL.D. / Please refer to full text to view abstract

Mercantile Law / LL. M. (Corporate Law)

“Contributory intent” refers to the situation where, besides the defendant being at fault and causing harm to the plaintiff, the plaintiff also intentionally causes harm to him- or herself. “Contributory intent” can have the effect of either excluding the defendant’s liability (on the ground that the plaintiff's voluntary assumption of risk or intent completely cancels the defendant's negligence and therefore liability), or limiting the defendant’s liability (where both parties intentionally cause the plaintiff's loss thereby resulting in the reduction of the defendant’s liability). Under our law the "contributory intent" of the plaintiff, can either serve as a complete defence in terms of common law or it can serve to limit the defendant's liability in terms of the Apportionment of Damages Act 34 of 1956. The “Apportionment of Loss Bill 2003” which has been prepared to replace the current Act provides for the applicability of “contributory intent” as a defence limiting liability, but it is yet to be promulgated. / Criminal and Procedural Law / LL. M.

The purpose of this treatise was to determine the distinction between the contract of service (employment) and the contract of work (independent contractor). A comprehensive literary survey was undertaken so as to establish if such a distinction does indeed exist. A logical point of departure was to study the contract of service and determine how the employment relationship is established by it. It is also necessary to establish under what circumstances a contract may be terminated and what the rights and obligations of the parties to the contract were. The contract between the parties will determine remedies to the breach of contract or applicability of labour legislation. It is also necessary to establish the definition of an employee under various statutes so as to understand what remedies exist should rights be infringed upon. Statutes considered include the Constitution of the Republic of South Africa, Labour Relations Act, Basic Conditions of Employment Act, Employment Equity Act, Unemployment Insurance Act, Compensation for Occupational Injuries and Diseases Act, Skills Development Act and the Income Tax Act. The effect of insolvency of the employer on the employee is also discussed. Outsourcing has played a major role in the emergence of the independent contractor. This phenomenon is considered from the point of the employer in terms of the reasons for choosing the option of outsourcing and the associated risks. The employee perspective is also dealt with in terms of why an employee would change his/her employment status. The various tests historically applied to determine the status of a worker is also discussed. These include the control, organisation, dominant impression and economic tests. Currently the dominant impression test is the one that is being applied to determine the employment relationship. Extensive reference was made to case law. United States of America cases are referred to with specific reference to the 20 Factor Test applied by the Internal Revenue Service. South African case law is dealt wit in terms of enforcement of Bargaining Council agreements, commission-earning persons, payment for services rendered, the intention of the parties and the identity of the true employer. The emergence of the dependent contractor is also addressed. This form of worker normally falls outside of the protection of labour legislation and social security. Amendments have been proposed to various statutes to remedy the situation in South Africa. A final aspect that is dealt with is that of vicarious liability. The applicability of this aspect lies in the liability of the employer for damages inflicted by the employee.

The Human Immunodeficiency Virus (HIV)1 and the Acquired Immunodeficiency Syndrome (AIDS)2 have become a global epidemic. With an average of 35.3 million people infected with the virus worldwide, countries are desperate to curb HIV infections.3 Most HIV positive men, women and children are found in Sub-Saharan Africa.4 In an attempt to fight HIV/AIDS, some countries have opted for an approach of criminalization, where it is a crime to infect or expose another person to the virus.5 Other countries, such as South Africa, have chosen to avoid the criminalization approach, and to focus rather on public health schemes that can assist in the prevention of transmission. The United Nations (UN) has stated that overly broad application of criminal law to HIV raises serious human rights and public health concerns.7 Because of these concerns, the Joint United Nations Programme on HIV/AIDS (UNAIDS) has urged states to limit application of criminal law to HIV-related cases.8 Furthermore, UNAIDS has urged states to rather employ scientifically proven methods to prevent HIV transmission. This treatise will set out the laws adopted by Canada, Zimbabwe, the United Kingdom, New Zealand and South Africa. Out of all five countries, South Africa is the only country that does not criminalize HIV transmission or exposure.10 In setting out the common law, statute law, case law as well as academic considerations, this treatise will attempt to identify trends in the current criminalization of HIV climate. In addition to setting out the law in the five countries, this treatise seeks to show that South Africa is one of the few countries with a developed legal system to shy away from criminalization. This treatise also seeks to establish whether South Africa’s approach is a suitable option for the country, considering it boasts the highest HIV infection rate in the world.

This study examines the basis of contractual liability in indigenous law. It concludes that contractual liability arises only from real contracts where one party has performed fully or partially in terms of an agreement. Attention is given to both the nature and concept of indigenous contracts to ascertain the function of contracts in indigenous societies in order to bring a holistic perspective to the topic. It is demonstrated that the settlement of disputes arising out of indigenous contracts is primarily focused on the reconciliation of people and the consequent maintenance of harmony within the community. The foremost concern in indigenous law of contract is with human justice rather than with strict legal justice, and expression is thereby given to prevailing community values. / Indigenous Law / LL.M.

If the expectancy that someone was to act according to what we deem to be his or her “duty” was that straightforward, there would be no need to address the issues of liability of the employee for the wrongful acts of the employer. The recent - and some say alarming - trend in South Africa to hold employers (particularly the government) liable for wrongful, culpable acts committed by their employees, gives rise to difficulties and any inquiry into the possible vicarious liability of the employer should necessarily always start by asking whether there was in fact a wrongful, culpable act committed by the employee. If not, there can neither be direct liability of the employee nor vicarious liability by the employer. Where the employee did indeed commit a delict, the relationship between the wrongdoer and his or her employer at the time of the wrongdoing becomes important. It is then often, in determining whether the employee was acting in the scope of his or her employment that normative issues come to the fore. Over the years South African courts have devised tests to determine whether an employee was in fact acting in the scope of his employment. / Jurisprudence / LLM