n South African Law Journal - State liability in South Africa : a more direct approach

Volume 130, Issue 2
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



In this article I investigate the problems which arise from the South African law of delict's attempt to hold the state vicariously liable. In part I, I explain the rules of vicarious liability. In part II, I explain the history of state liability in South African law, and its heavy reliance on the vicarious liability paradigm. In part III, I discuss the problems that this has created in cases decided in the last ten years, arguing that vicarious liability cannot coherently accommodate the state's unique duties or the multifaceted failures for which it is being sued. Both difficulties are addressed by holding the state directly liable, but doing so requires our law to address certain conceptual challenges, which I discuss in part IV. Finally, in part V, I discuss a recent Constitutional Court judgment which constitutes the most recent installment in this saga.

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