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So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it for where both are equally in fault, potior est conditio defendentis. It is on that ground the court goes: not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. The principle of public policy is this ex dolo malo non oritur actio. It is not for his sake, however, that the objection is ever allowed but is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. Knowledge on the part of the plaintiff that the defendant intended to smuggle the goods did not affect the plaintiff’s entitlement to recover the price of the goods, since he was not himself involved in the smuggling. The plaintiff was met with a defence of illegality. The approach to other legal systems remains of relevance and could assist us in developing our own domestic laws further.A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. These case law entail: Administrator, Natal v Edouard, Mukheiber v Raath, Steward and Another v Botha and Another, Sonny and Another v Premier of the Province of KwaZulu-Natal and Another and Friedman v Glickman. The study will canvasses the issue of the vicarious liability of juristic persons for maintenance of children by invoking similar situated case law and draw a resolution from these court cases. If this question is to be answered in the affirmative, then the hospital is liable to the appellant in damages for pain and suffering and for the maintenance of her child. The questions this research raises are whether the juristic person (hospital) was negligent in the manner in which they dealt with the appellant’s predicament. She was sent from pillar to post till the unwanted child was born. In the Mildred-case the appellant after being rape, requested a doctor to give her medication to prevent pregnancy. As far as they act as organs of the juristic person (hospital), the employing institution is vicariously liable for its servants’ delictual actions. The fact that the medical professionals are integrated into the organisational structures of a hospital and are subject to administrative directions suffices to make them “servants.” So when these servants commit a delict or wrongful conduct against patients in the course and scope of their employment, the Ministry of Health or the hospital will be found to be vicariously liable. This research purports that professionally skilled employees such as medical practitioners, surgeons, specialist obstetricians and gynecologists are regarded as servants of the juristic person.

The Inquiry of this study is to explore whether a juristic person such as the Ministry of Health or a Hospital is vicariously liable for actions of its servants.