PAJA's def of AA : part 1

Question 1

A decision of an administrative nature can include a failure to take a decision

Answer 1

True
- Listed GOR in PAJA
- But administrator must have an obligation to make a decision.

Question 2

All listed exclusions must be subject to POL.

Answer 2

True.

Question 3

When testing whether conduct is admin action, what matters is the functionary.

Answer 3

False.
What matters os not the functionary, but the function.
- Focus: the nature of the power being exercised.

Question 4

Admin Action is concerned with the formulation of policy

Answer 4

False
- AA is concerned with the implementation of legislation.

Question 5

According to SARFU, when the president appointed the commission, he was implementing legislation.

Answer 5

False
- he was exercising an original const power which was vested in him alone.

Question 6

If an administrator has a duty to take a decision, but there is no time stipulated, the ground of review would be ‘duty to make a decision’ when he/she does not make a decision.

Answer 6

False.
- GOR: an unreasonable delay in taking a decision

Question 7

According to SARFU, the formulation of policy in the broad sense is generally not admin action

Answer 7

False
- according to Ed-u-college

Question 8

Policy in the narrow sense is when a member of the exec implements legislation

Answer 8

True
- Ed-u-college : this is often AA

Question 9

Admin action may include exercises of public power that have elements of policy formulation

Answer 9

True
- Ed-u-college: AA may include exercises of PP that have elements of policy formulation but in a narrow sense .

Question 10

The court must use the formula to determine the line between exec and admin action

Answer 10

False
- Matou : there is no ready formula to determine the line between exec and admin action.

Question 11

Exec-action relates to high-policy/broad discretionary powers

Answer 11

True

Question 12

According to Matou, Lower-level powers occur before the formulation of policy.

Answer 12

False.
- Lower-level powers occur after the formulation of policy. i.e implementation of legislation (Matou)

Question 13

Fedsure held that the enactment of legislation by an elected local council is a legislative act.

Answer 13

True
- an elected local council s a deliberative legislative body.

Question 14

A proclamation by a president is a form of admin action

Answer 14

False.
- he is neither making law nor administering it.
- power lies in between
- requires a political judgment
- Proclamation is closer to the legislative process than the admin process.

Question 15

Delegated legislation is rule making by functionaries empowered by specific legislation

Answer 15

True

Question 16

In new clicks, Sachs J held that S33 + Paja generally apply to regulations

Answer 16

False.
- Sachs J : S33 and PAJA generally do not apply to regulations as S33 is geared towards protecting individuals and not focused on the way laws of general application are made.

Question 17

Chaskalson J, in New clicks, held that S33 and PAJA do generally apply to regulations

Answer 17

True
- values of transparency and openness

Question 18

Esau held that the making of regulations by a minister is admin action.

Answer 18

True
- Relied on City of Tshwane case

Question 19

Chaskalson J, in New clicks, held that one should exclude regulations from the definition of ‘decision’

Answer 19

False
- Held that there is no reason to exclude regulations from the definition of ‘decision’ because it includes another other act/thing of admin nature.

Question 20

Ngobo’s approach in New Clicks should be followed.

Answer 20

False
- Follow Chaskalson J as both the function and functionary should be considered.

Question 21

The test for whether an act is admin in nature should be institutional and functional.

Answer 21

True