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A: Procedural Stage - 2: Duty bearers - Cases - Coggle Diagram
A: Procedural Stage - 2: Duty bearers - Cases
Calibre Clinical consultants v National bargaining council for the road freight industry
Guidelines (S38) to consider when determining whether a power is governmental in nature
Or it is a task for which the public, in the shape of the state, have assumed responsibility
Or it is linked to the functions and powers of government
Or the government regulates, supervises, and inspects the performance of the function
Or it constitutes a privatization of the business of government itself
Or integrated into a system of statutory regulation
Or it is publicly funded
Extent to which the functions concerned are woven into a system of governmental control
Whether the exercise of the power of the performance of the function might properly be said to entail public accountability to those with whom the functionary or body has no special relationship other than that they are adversely effected by its conduct and the question in each case will be whether it can properly be said to be accountable notwithstanding the absence of any special relationship
E.g., if you set up a private tertiary institution (through a company set up through the Companies Act), and do not therefore have a statute from which it will derive its power - you may be considered a state organ because what you are doing is governmental in nature
Daniels v Scribante
The rights in question were the occupiers right to enjoyment of the property in S25(6)
Whether a private person will be bound will depend on these factors:
Nature of the right
What the rights seeks to achieve
History of the right
Potential of invasion by person other than organs of state
Would not enforcing this to private persons negate the essential content of the right
Occupier, Ms Daniels, lives on a farm and wants to install a basin, window and to level the floors
The owner refuses to give permission even though she offers to pay for it herself. The owner claims that if she makes improvements she indirectly imposes a positive obligation on the owner, as when she leaves the property, the owner would have to repay Ms Daniels
The issue raised is whether positive obligations can be placed on private parties concerning S8(2) of the Constitution
The court ruled that in certain cases it is possible to impose a positive obligation on private parties especially where there is a question of human dignity