Lecture notes of the second part of the Delict notes- covering vicarious liability, defamation of character and others. Taught by Prof. Boonzaier.
Notes made in 2023
Contents
1 Vicarious Liability .................................................................................................................................... 2
1.1 The employment relationship ..................................................................................................... 3
1.2 The course and scope requirement ......................................................................................... 5
2 Alternatives to vicarious liability ......................................................................................................... 7
3 Defamation (and other inuria) ........................................................................................................... 9
3.1 Nature and Scope: ........................................................................................................................ 9
3.2 The positive requirements .......................................................................................................... 10
3.2.1 Publication: first requirement of plaintiff to prove ....................................................... 10
3.2.2 Defamatoriness: the second requirement for the plaintiff to prove ...................... 11
3.2.3 What counts as a statement? .......................................................................................... 12
3.2.4 Which society? ...................................................................................................................... 12
3.3 Third requirement is that it must be about the plaintiff...................................................... 13
4 Defences - Truth, privilege, and fair comment ............................................................................ 13
4.1 Animus iniuriandi and reasonable publication .................................................................... 16
4.2 The defence of reasonable publication ............................................................................... 18
4.2.1 Bifuricated system of defamation ................................................................................... 20
Self-study: Remedies.................................................................................................................................... 21
, Delict Term 2 Lecture Notes
1 Vicarious Liability
Introduction
What is vicarious liability?
Vicarious liability is a concept in which an employer is held strictly liable for the acts of another person, usually an
employee, who commits a delict. According to legal scholars such as Neethling and Potgieter, vicarious liability
imposes a form of strict liability on the employer, requiring them to compensate the plaintiff regardless of any fault
on their part. The primary wrongdoer, however, must have some degree of fault.
One notable aspect of vicarious liability is that the employer may not have been directly involved in the incident
at all, making it even more extreme than strict liability. It can be applied even if the employer took all necessary
precautions to prevent the wrongdoing. As a result of vicarious liability, both the wrongdoer and the employer
are held liable to the plaintiff, although often the focus is on pursuing compensation from the employer who is
more likely to have sufficient financial resources.
REQUIREMENTS [NECESSARY CONDITIONS]:
The defendant will only be held vicariously liable if, and only if…
1. A delict was committed against the plaintiff by a wrongdoer (W caused a Delict to P)
2. When the delict was committed, the wrongdoer was the defendants employee (W works for D)
3. The delict was committed in the course and scope of the wrongdoer’s employment with D.
Rationale
Ways to justify vicarious liability (VL) have been proposed, but they have their flaws and are not entirely
satisfactory. Some arguments include:
Holding the person who authorizes a wrongful act equally liable as the person who commits it, but VL
goes beyond this.
Making the employer liable for employing dangerous employees or failing to supervise them, but VL
applies even when the employer behaves impeccably.
Some courts have admitted using VL to provide the plaintiff with a more effective remedy, known as the
"deep pockets rationale."
However, it is important to note that the aim is not to find faults on the part of the employer and break the
connection between fault and VL. If VL is to be justified, there should be a meaningful way to link the
employer to the situation, not just based on financial considerations.
One possible rationale is the "enterprise risk rationale," where the employer benefits from the business enterprise
and should bear the associated costs and risks.
However, this rationale does not apply to the state or charitable organizations that do not benefit in the same
way. Additionally, it is argued that this rationale is overly inclusive and does not align with the scope and nature
of the duty requirement.
Other justification for VL include moral/justice-based rationales and policy justifications such as deterrence and
loss spreading.
However, the effectiveness of deterrence relies on empirical evidence, and there is limited proof that VL actually
changes behavior significantly. Employers are already liable for negligence in many cases, and they are
motivated to take effective steps to prevent wrongful acts.
Overall, there are differing opinions on the true basis of VL, and none of the proposed justifications seem entirely
convincing.
, 1.1 The employment relationship
o Colonial Mutual Life Assurance Society Ltd V Macdonald 1931 Ad 412
o Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) (especially 60G–64B)
Employees and independent contractors
Today we are talking about the 2nd requirement required for VL. This is the relationship between the defendant
and the employee. The relationship must be one of employment.
Distinguishing between employees and independent contractors is crucial in determining vicarious liability (VL).
However, there are challenges in making this determination, particularly when it comes to individuals who may
operate as independent contractors but are closely associated with the defendant.
Colonial v Macdonald:
In this case, a life insurance salesman, who was considered an independent contractor, caused harm to a
customer while driving. The customer sued the life insurance society that employed the salesman, arguing for VL.
The court, applying the control test, determined that the salesman was indeed an independent contractor,
absolving the company from VL. The control test examines whether the defendant has control over both the end
result and the manner in which the work is performed, not just the outcome. (*more detail in case summary)
Importance and Evolution of the Control Test
The Colonial v Macdonald case has become a seminal authority in our legal system, highlighting the significance
of differentiating between contractors and independent workers. It firmly established that VL does not extend to
independent contractors. However, the control test, as applied in that case, is no longer a fixed principle in our
law. I.e. it’s not the decisive factor of whether or not there is an employment relationship
Complexity and Modernization
The control test has been altered by a more nuanced approach due to its limitations and inadequacies in various
work contexts. It may not be suitable for highly skilled professionals, such as pilots or doctors working for hospitals,
where the degree of control may not accurately reflect the employment relationship. South Africa recognized
this issue in the mid-20th century and has since sought more comprehensive criteria to determine the distinction
between employees and independent contractors.
o It is still considered as a factor when establishing the relationship, but it’s not the only thing looked at.
In summary, while the control test historically played a significant role in distinguishing employees from
independent contractors for VL purposes, it has given way to a more refined and context-specific approach. This
shift acknowledges the complexity of modern work arrangements.
R v AMCA Services Case:
The R v AMCA Services case pertained to a minimum wage dispute rather than a delict case. The insurance
company argued that its salespeople were but independent workers, relying on the Colonial v MacDonald case
to support their claim. They contended that they were not obligated to pay minimum wage to these agents as
they did not qualify as "employees."
Judge Schreiner's Perspective on the Organization Test
Judge Schreiner disagreed with the insurance company's stance, deeming it unfair. He believed that the control
criteria alone should not be the sole determinant. Instead, he proposed a broader test known as the "organization
test." This test sought to establish whether the salesperson was an integral part of the defendant's organization
and whether the defendant's business was involved. Although somewhat vague, Schreiner provided some
guidelines to consider, such as the level of control, payment, provision of equipment, hiring and firing capacity,
and freedom to work for other companies. Ultimately, Judge Schreiner concluded that the insurance salespeople
fell within the category of "employees," contradicting the Colonial case ruling.
Smit v Workmen's Compensation Commission:
Dealt with statutory interpretation rather than vicarious liability. Mr. Smit, an insurance agent, suffered severe
injuries in a car accident while driving to make a sale. The question was whether he was entitled to compensation
under the compensation act, which only applied to "workmen" employed under a contract of employment.
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