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''K v Minister of Safety and Security''〔2005 (6) SA 419 (CC).〕〔Case No. 52/04.〕 is an important case in the South African law of delict and South African constitutional law. It was heard by the Constitutional Court on May 10, 2005, with judgment handed down on June 13. Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J presided. W. Trengove SC (with him K. Pillay) appeared for the applicant; PF Louw SC (with him JA Babamia) appeared for the respondent. The applicant's counsel was instructed by the Women's Legal Centre, Cape Town. The respondent's attorney was the State Attorney, Johannesburg. The first question addressed in this case was ambit of the courts' duty to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights as intended in section 39(2) of Constitution. The purpose of that section, it was determined, is to ensure that the normative value system created by the Constitution permeates the common law. The courts are bound by section 39(2) not only when contemplating a radical departure from existing common-law rules, but also when an incremental development thereof in issue. The second and more central question was the constitutionality of the common-law principles underlying the vicarious liability of an employer for the delictual acts of his employee. The court distinguished between the principles themselves and their application. The traditional notion of the application of these principles as matter of fact untrammelled by considerations of law or normative principles was found to be constitutionally untenable. The application of the principles was accordingly in need of development to conform to the normative framework of the Constitution. This meant no more than that a court must bear in mind constitutional norms when deciding whether the case before it is in principle one in which the employer should be held liable. The principles themselves, as embodied in the present two-stage test, focusing on the subjective question as to the state of mind of the employee, together with the objective question as to whether there is a sufficient link between the conduct of the employee and the employer's enterprise, were found to be consistent with constitutional norms. The particular question to be decided in this matter was the liability of the Minister of Safety and Security for criminal acts committed by police officers while on duty. The police officers in question had been found guilty of rape. To determine whether or not the Minister was vicariously liable, the court used a two-stage common-law test for liability, developed in light of the normative framework of the Constitution. This test, drawn from the case of ''Minister of Police v Rabie''〔1986 (1) SA 117 (A).〕 had both a subjective stage (evaluating the state of mind of the employee) and an objective stage (considering the link between the delict and the employer's enterprise). The policemen, subjectively viewed, were found to have acted in pursuit of their own objectives. Their conduct, however, was sufficiently linked to their employment as policemen, particularly when viewed against the background of the Constitution. The Minister, accordingly, was held to be vicariously liable. == Facts == The applicant, who was brutally raped by three uniformed policemen who had given her a lift, applied for leave to appeal to the Constitutional Court against a judgment of the Supreme Court of Appeal (SCA) which held that the respondent was not vicariously liable for the policemen's conduct. The applicant based her appeal on three arguments: * that the SCA had erred in its application of the common-law test for vicarious liability; * that, if it had not, the test had to be developed as intended in section 39(2) of the South African Constitution; and * that the State in any event had to be held directly liable for its failure to protect her from harm. The applicant argued that the SCA's conclusion—that the principles of vicarious liability did not render the respondent liable—was inconsistent with the Bill of Rights, and that the principles of vicarious liability therefore had to be developed to render the respondent liable. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「K v Minister of Safety and Security」の詳細全文を読む スポンサード リンク
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