have been in had it been a private institution. When it purported to cancel the contract it was not performing a public duty or implementing legislation; it was purporting to exercise a contractual right founded on the consensus of the parties in respect of a commercial contract. In all these circumstances it cannot be said that the appellant was exercising a public power. Section 33 of the Constitution is concerned with the public administration acting as an administrative authority exercising public powers, not with the public administration acting as a contracting party from a position no different from what it would have been in had it been a private individual or institution.’ (Emphasis provided.) The reasoning in the and cases was adopted and Cape Metropolitan applied by this Court in the Permanent Secretary v Ward matter. The appellant therein had cancelled a contract concluded with the respondent, a medical doctor who practised for his own account, to become a service provider to the Public Service Employees Medical Aid Scheme (PSEMAS). The scheme provided for by the agreement was that a service provider would render his professional services to members of PSEMAS at a prescribed professional tariff. For these services the service provider would then be remunerated by the administrator of the scheme on behalf of the second appellant, the Minister of Finance. The termination was on grounds that the respondent had been guilty of dishonest conduct in breach of a clause of the agreement. At paras 59 to 61 of the judgment, the Court said: Ward In the present instance there can be no doubt that the first appellant is a ‘[59] public authority and that the power to enter into the agreement was derived from statute. However, the terms of the agreement are not statutorily prescribed, in fact nowhere is there even any direct mention of an agreement. Clause 11.5, in terms
have been in had it been a private institution. When it purported to cancel the contract it was not performing a public duty or implementing legislation; it was purporting to exercise a contractual right founded on the consensus of the parties in respect of a commercial contract. In all these circumstances it cannot be said that the appellant was exercising a public power. Section 33 of the Constitution is concerned with the public administration acting as an administrative authority exercising public powers, not with the public administration acting as a contracting party from a position no different from what it would have been in had it been a private individual or institution.’ (Emphasis provided.) The reasoning in the and Cape Metropolitan cases was adopted and applied by this Court in the Permanent Secretary v Ward matter. The appellant therein had cancelled a contract concluded with the respondent, a medical doctor who practised for his own account, to become a service provider to the Public Service Employees Medical Aid Scheme (PSEMAS). The scheme provided for by the agreement was that a service provider would render his professional services to members of PSEMAS at a prescribed professional tariff. For these services the service provider would then be remunerated by the administrator of the scheme on behalf of the second appellant, the Minister of Finance. The termination was on grounds that the respondent had been guilty of dishonest conduct in breach of a clause of the agreement. At paras 59 to 61 of the Ward judgment, the Court said: ‘[59] In the present instance there can be no doubt that the first appellant is a public authority and that the power to enter into the agreement was derived from statute. However, the terms of the agreement are not statutorily prescribed, in fact nowhere is there even any direct mention of an agreement. Clause 11.5, in terms