n South African Law Journal - The relationship(s) giving rise to vicarious liability in South African law




This article examines the relationships giving rise to vicarious liability in South African law and questions the orthodox view that there are (at least) three such relationships. In this article, I put forward the view that South African courts have understood the employment relationship more broadly than as a contract of service, and have imposed liability in the absence of such a contract between the primary wrongdoer and the defendant, and even in spite of such a contract existing between the primary wrongdoer and a third person. The courts have imposed liability in terms of these other two relationships which are said to give rise to vicarious liability only in so far as they resemble the employment relationship. I argue further that this understanding of the relationships has significant implications, amongst others, for cases involving liability for a borrowed servant and for those involving independent contractors.


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