mad provisions for termination of fraud. CMC relied on CL contractual rights rather than legislation should not be relevant here. There was legislation which made provision for termination of an outsourcing agreement on grounds including fraud. The reasoning in Cape Metro was characterized somewhat differently in Logbro . Cameron JA rejected the argument that a tender contract could be exercised without regard for administrative justice. He pointed out that Cape Metro distinguished between tender and employment. The question of whether a public body is required to act fairly when exercising a contract was left open. The administrator in Logbro was undoubtedly acting from a position of superiority evidenced by it dictating the tender conditions and so the decision to call for new tenders was administrative action even if sourced in contract. More recently the SCA took the view that once a tender had been awarded it was a contractual not administrative relationship. In MV Snow Crystal it was held that it is difficult to draw the line between public duties and contractual obligations. 28
The SCA has displayed more consistency in cases dealing with property than contract. In Bullock the court emphasized an element of public interest in the granting of a servitude over state owned land and that it must be administrative action. In Grey’s Marine , a case decided under PAJA, the court did not differ from that reasoning. The Constitutional Court has generally not permitted the contractual features of a case to blind it to the relevance of public power. In Masetha the court cautioned that the president’s powers are subject to constitutional constraints even if there is a contractual element. In Joseph the court held that Eskom’s relationship with tenants was governed by more than merely contract but also administrative law. (ii) Private bodies exercising public powers A purely institutional test would suggest private bodies are incapable of administrative action but this is not so. Private bodies can exist which exercise public powers typical of governments. These are becoming popular where activities are contracted out. PAJA explicitly includes such actors and does so without insisting their actions be taken in terms of legislation. It does not define what gives a power its ‘public’ character. The courts are answering this incrementally. Some private bodies gave no direct statutory powers but act coercively and are integrated into the system of statutory regulation. Their decisions have sometimes been reviewable at common law. In Datafin the English court looked beyond the source of the power and acknowledged the nature. The SA version Dawnlaan Beleggings reviewed the decision of the JSE, a non-statutory body under a statutory duty to act in public interest.
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