Exclusion

Question 1

What is meant by ‘exclusions’ under PAJA?

Answer 1

These are instances where certain actions or decisions are not reviewable under PAJA, either explicitly excluded by the Act or interpreted as excluded by courts.

Question 2

Which section of PAJA provides for exclusions?

Answer 2

Section 1 defines ‘administrative action’ and excludes specific categories from its scope.

Question 3

Is the executive function of the President reviewable under PAJA?

Answer 3

No. Decisions by the President acting in terms of section 84(2) of the Constitution (e.g. pardons, honours) are excluded from PAJA.

Question 4

Are legislative functions covered under PAJA?

Answer 4

No. Actions by Parliament or provincial legislatures exercising legislative functions are excluded from PAJA.

Question 5

Are judicial functions included under PAJA?

Answer 5

No. Decisions by courts or judicial officers performing judicial functions are excluded from the definition of ‘administrative action’.

Question 6

Are decisions relating to prosecutorial discretion reviewable under PAJA?

Answer 6

No. Decisions by the National Prosecuting Authority to prosecute or not prosecute are excluded from PAJA.

Question 7

Can actions of the Judicial Service Commission (JSC) be reviewed under PAJA?

Answer 7

Generally, no. The JSC’s functions are not considered administrative actions under PAJA, but they may be reviewable under constitutional principles of legality.

Question 8

Are policy decisions made by the Cabinet or Ministers included in PAJA?

Answer 8

No. High-level policy decisions are excluded, as they are executive rather than administrative in nature.

Question 9

Are private bodies performing public functions included under PAJA?

Answer 9

Yes, if the function is a public power or function in terms of legislation. Otherwise, they may be excluded.

Question 10

Can excluded actions still be reviewed?

Answer 10

Yes. Even if excluded from PAJA, they may still be reviewed under the principle of legality or constitutional review.

Question 11

What are the specific exclusions?

Answer 11

1. Exercise of powers by the Executive in the national,
   provincial and local spheres of government
2. Making of legislation
3. Judicial functions of the courts
4. Actions of traditional leaders and a special tribunal
5. A decision to prosecute
6. Appointment of judicial officers
7. Decisions under PAIA
8. Decision in terms of section 4(1)

Question 12

What are the factors to consider in determining whether a function is judicia; in terms of SA Association of Personal Injury Lawyers v Heath?

Answer 12

It must be considered whether the function:
*Is more usual or appropriate to another branch of
government;
*Is subject to the executive control or direction;
* Requires the judge to exercise a discretion and make a
decision on the grounds of policy rather than law;
* Creates the risk of judicial entanglement in matters of
political controversy;
*Involves the judge in the process of law enforcement;
*Will occupy the judge to such an extent that he or she is
no longer able to perform his or her normal judicial
functions