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n Stellenbosch Law Review = Stellenbosch Regstydskrif - Sexual harassment and vicarious liability : a warning to political parties
This article argues that the South African doctrine of vicarious liability should be extended to bring it in line with international trends, in order to accommodate instances where members of political parties abuse their positions of power in sexual harassment scenarios. The fact that sexual harassment is unquestionably present in our society as well as in the conduct of political figures who abuse their power, necessitates legal transformation in South Africa if the progressive promotion of gender equality is to become a true characteristic of our country.
The flexible doctrine of vicarious liability can help realise this goal by making provision for special relationships, such as that between a political party and its chief whip, in accordance with common law requirements. These requirements include the presence of an employer-employee relationship,and the commission of a wrong by an employee acting within the scope of his employment.
It is argued that the relationship between a political party and its chief whip is akin to that between an employer and employee, in that a chief whip acts in accordance with the will of his political party when fulfilling his duties in Parliament. It is further explained that the mere fact that a chief whip is remunerated by Parliament does not constitute an insurmountable obstacle.
Thereafter, it is argued that the abuse of political power in the form of sexual harassment by a chief whip indeed falls within the scope of his employment. Furthermore, it is shown that if the flexible doctrine of vicarious liability is viewed within the context of constitutional values such as equality, freedom and dignity, as well as the constitutional duty to develop the common law in line with the Constitution in terms of section 39(2), it becomes apparent that the doctrine must be interpreted so as to cover special relationships such as the one discussed.
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