The use of vicarious liability in environmental law to enhance the legal conservation status of birds of prey

Abstract

Vicarious liability has been introduced in Scottish environmental law to strengthen the fight against wildlife crime, in particular against birds of prey. Accordingly, landowners can now incur liability for wildlife crime perpetrated by the landowners’ employees. Conservation organisations have lauded this development, and this raises the question of whether a similar application of vicarious liability in South African environmental law could enhance the legal conservation status of birds of prey. Vicarious liability is well established in the South African law of delict but is controversial in the context of criminal law. South African environmental law already makes provision for a form of vicarious liability, inter alia also against wildlife crime, but this liability is not strict like the traditional form of vicarious liability known in the law of delict and can accordingly only be referred to as vicarious liability in a wider sense. Unlike traditional strict vicarious liability, which is regarded as undesirable in criminal law by the courts and authors, the wider form of vicarious liability in environmental law may well pass constitutional muster. Nonetheless, the direct liability of a landowner, based on a statutory legal duty to prevent the perpetration of wildlife crime by its employees, would arguably be a more satisfactory solution.