This article aims to advance the distinction and narrative between public and private bodies. These differences reiterate the distinction between not only the function of the bodies but also the powers conferred on them. This article’s length and breadth are also not narrowed to fit a specific causa or scenario. It aims to declare the law, that is, and not to advance a new set of ideas and norms. The rule of law that governs this distinction is a fundamental principle in our law which has been crisply advanced in numerous authorities (see Pharmaceutical Manufacturers Association of SA and Others; In Re: Ex Parte Application of President of the RSA and Others 2000 (3) BCLR 241 (CC) at para 39).
Public bodies responsible for exercising public powers are required to act strictly within the powers that have been conferred on them. The law must authorise all decisions, acts and the like.
Private individuals may, however, do as they wish, provided the law does not expressly prohibit it.
The difference is not only the lens used to distinguish how the law is applied to them but also the cornerstone of the rule of law. Even though public bodies and private persons are subject to the rule of law, the approach to what may or may not be done by them is fundamentally different.
At para 11 in the matter of Chief Lesapo v North West Agricultural Bank and Another 2000 (1) (SA) 409 (CC), Mokgoro J emphasised: ‘No one is entitled to take the law into her or his own hands. Self-help, in this sense, is inimical to society in which the rule of law prevails, as envisaged by s 1(c) of our Constitution’. Furthermore, C Hoexter in Administrative Law in South Africa 2ed (Cape Town: Juta 2012) at 139 explains that: ‘The courts are there to keep the state and its officials within the bounds of their powers and to protect citizens from excesses of power’. This view is premised on the basis that: Individuals may do as they wish, provided that whatever these limitations impose, it is not expressly prohibited by the law.
Furthermore, in R v Somerset County Council, ex parte Fewings and Others [1995] 1 All ER 513 at 524, the court grappled with this same question of what the relationship is, which these bodies experience with each other.
The court confirmed that while private persons are free to do anything they want, the law does not prohibit, public bodies, on the other hand, may only act within the powers that are bestowed on them. Laws J further held that: ‘Public bodies and private persons are both subject to the rule of law; nothing could be more elementary.’ Private persons may do anything the law does not prohibit, a private person is not shackled by affirmative justification for the actions he seeks to conquer or ‘must burrow in the law books’. The rule is, however, the opposite for public bodies and any action ‘must be justified by positive law’.
Considering our constitutional dispensation, these fundamental principles, as Laws J explains it in Somerset Country Council, need to be enunciated and made more apparent among the public and legal practitioners alike.
The notion that the state can act without fear, favour or prejudice also applies to the private person. They may trade, sell, contend and advance their personal dreams and aspirations (without fear) in both social and economic spheres, albeit within the premise and spirit of our laws and customs.
The distinction is crucial as it traverses what power the state can (actually) exercise, as confirmed by legislation, and what the individual can do in response to that discretion and exercising of power.
The rule of law is not only a mechanism the state can use to decide what its citizens may do or not do, but it also serves as a safeguard and high watermark to which citizens can hold the state or municipalities responsible for their actions.
In Oudekraal Estates (Pty) Ltd v City of Cape Town and Others [2004] 3 All SA 1 (SCA) at para 32, Howie P and Nugent JA elaborated on this principle, stating ‘the rule of law a statute will generally not be interpreted to mean that a subject is compelled to perform or refrain from performing an act in the absence of a lawful basis for that compulsion’.
In closing, the distinctions between private and public bodies are valuable for many reasons. This distinction must be woven into the fundamental makeup of every legal practitioner’s legal toolbox. Every argument, in essence, must first, recognise this distinction and apply to the law correctly. The distinction safeguards the legal practitioner from choosing the incorrect avenue to advance their client’s case and lays the foundation to rebut an incorrectly advanced argument.
Although a simple distinction, it is a core principle of our law embodied by our constitutional dispensation to hinder the abuse of power and advance the individual(s) liberty.
Kirsten Carstens BA LLB (UP) is a candidate legal practitioner at Otto Krause Inc in Johannesburg.
This article was first published in De Rebus in 2023 (Jan/Feb) DR 55.
