Public/Private divide

Question 1

Public power can be exercised by a public or private entity.

Answer 1

True

Question 2

Only PAJA recognises that private actors may exercise public functions

Answer 2

False
- Const and PAJA recognises that private actors may exercise public functions

Question 3

According to Justinian’s Institutes, public and private law overlap

Answer 3

False
- Pub and Priv law are distinct
- Because:
1. The state and the citizen are unequal
2. Private relations are equal.
3. Public law has political considerations.
4. Private law is divorced from political considerations

Question 4

AMCU held that there is no impenetrable wall between private and public law

Answer 4

True

Question 5

AMCU held that to be able to access whether a power is public, we have to look at what the power looks and feels like

Answer 5

True

Question 6

Mustapha held that if the relationship is in its essential contractual, contract law will govern the agreement.

Answer 6

True

Question 7

Cape metropolitan, a Constitutional case, moved away from the contractual approach

Answer 7

False
- The court held that once entered into agreement, the terms are governed by the contract + termination was to be according to the contract.

Question 8

Logbro held that while Cape Metro answered the general legal question, one must still look at whether there is equality between the acots.

Answer 8

False
- Logbro held: CM did not provide a general answer to the question of whether a public authority, in exercising powers derived from a contract, is in all circumstances subject to the public duty to act fairly.
- Logbro: answer depends on all the circumstances.

Question 9

Logbro held that it is NB to assess whether there is equality or not between the public authority and the contracting party.

Answer 9

True

Question 10

Whether the actor is able to exercise some superiority in the relationship by virture of being a public authority, is a persuasive factor in determining whether they are exercising public power.

Answer 10

False
- CM and Logbro added this as a determining factor.

Question 11

Logbro held that public bodies must act in the public interest.

Answer 11

False.
This was from Bullock

Question 12

According to Chirwa, courts must exercise its discretion when assessing whether an exercise of public power exists.

Answer 12

True

Question 13

In Cape Metro, the court held that the power to cancel a contract derived from the contract itself.

Answer 13

True

Question 14

Dawnlaan held that natural justice is NB

Answer 14

False
- Turner v Jockey club

Question 15

Courts can apply the requirements of procedural fairness even when the decisions made by private entities were exercises of private power.

Answer 15

True

Question 16

The courts use the control test to determine whether an entity constituted an organ of state.

Answer 16

False
Allpay: control is not determinative

Question 17

A private entity must be an organ of state to be deemed to exercise public power.

Answer 17

False
AAA Investments

Question 18

The court in calibre held that one must assess whether conduct is ‘governmental in nature’ in order for it to be public

Answer 18

True

Question 19

All pay held that public powers/functions are wider than governmental powers/functions

Answer 19

False
- this was held in AMCU

Question 20

The courts have held that private associations regulating sport is an exercise of public power

Answer 20

False
- The courts are divided.

Question 20

Ndoro held that if a private entity is powerful and does things of great public interest means that it performs a public function.

Answer 20

False