IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 2227/2023
In the matter between:
MTHETHO HLAMAND ANA 1st Applicant
BHEKAMEVA ROYAL FAMILY 2nd Applicant
and
PREMIER, EASTERN CAPE PROVINCIAL
GOVERNMENT 1st Respondent
MEC FOR COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS, EASTERN
CAPE 2nd Respondent
ISIKELO TRADITIONAL COUNCIL 3rd Respondent
ADV.N. JAMES N.O 4th Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
ZONO AJ:
Introduction
[1] On 1 7th February 2025 the applicants lodged an application for leave to
appeal against the judgment delivered on 04th February 2025 . The application
is, on relevant part, couched in the following terms:
“And further take notice that the grounds on which such leave will be
sought are the following:
1.
(a) An Appeal C ourt would reasonably find that the
Honourable Judge erred in remitting the matter to the
fourth respondent for a lawful decision to be taken by the
fourth respondent because the order for remitting the
matter to the fourth respondent was never asked for, by
any of the parties in the proceedings, and is not apparent
on the pleadings that were before c ourt. Accordingly,
there is no evidential basis justifying the grant of such an
order. In the circumstances it is respectfully submitted
that the Acting Justice failed to exercise his discretion in
this regard judicially, particularly in this case where th e
proceedings which His Lordship describes as being
extant, are completed proceedings.
(b) In this regard the Appeal Court would reasonably find that
had the court a quo judicially exercised its discretion it
would have realized that remitting the matter to the fourth
respondent in the circumstances of this case, where it
had been established that the fourth respondent had
exhibited gross incompetence, lack of skill in performing
quasi -judicial function in the enquiry, in that he failed to
properly evaluate the evidence and make rational
findings, he failed to act fairly and that he exhibited lack
of the understanding of the statute in terms of which he
had been appointed and the functions he had to perform
in terms of the said statute th at governs the enquiry he
was appointed to preside over. Given that there was
such a state of affairs, it is submitted that remittal of the
matter to the fourth respondent will operate procedurally
unfairly to both parties. Consequently, for the
aforemen tioned reasons, the right which everyone has, to
a lawful reasonable and a procedurally fair administrative
action w ill not be given full effect to, and that will
prejudiced both parties.
(c) The appeal court would reasonably find that His Lordship
erred i n remitting the matter to the fourth respondent who
had been appointed to specifically preside over an
enquiry which ran its full course and completed its
proceedings and made its decisions as contemplated in
the statute. Currently the fourth respondent is not a
holder of such an appointment and there is no order of
court that directs that he be appointed once more . Having
completed his duties his decisions were subsequently
taken on appeal which appeal confirmed the fourth
respondent’s decisions. The fourth respondent is
accordingly functus officio.
(d) The appeal court would reasonably fi nd that the His
Lordship erred in remitting the matter to the fourth
respondent given what is set out in paragraph (c) above,
because the consequences that flow th erefrom is that the
fourth respondent no longer exists in the capacity that he
was clothed with when he presided over the enquiry , and
therefore he cannot reconsider any of the decision that
have been set aside without having been lawfully
appointed. Accor dingly, it is pointless to remit in this
regard.
2.
(a) The appeal court would reasonably find that His Lordship
misdirected himself in issuing the order for remittal in this
regard if regard is had to what is alluded to in the above
paragraphs and has consequently issued a formless,
incomplete, incoherent and impermissibly vague remittal
order which violates the rule of law, which is a founding
principle of our Constitution.
(b) The appeal court would therefore reasonably find that
given what is alluded to herein above. His Lordship ought
to have decided not to remit the matter after having
granted the other orders that have granted which are not
a subject of this appeal, and should have left the matter
there so that the first and se cond respondents would
determine themselves how to deal with the matter in the
manner that they deem fit.”
[2] Mr Mdodana, who appeared for the respondents in the main application on
instructions of the State attorney, indicated that the respondents are n ot
opposing the application for leave to appeal by the applicants. The application
for leave to appeal then ran unopposed.
Legal Principle
[3] An application for leave to appeal is governed by Section 17(1) of the
Superior Court Act which provides as follows:
“(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that —
(a) (i) the appeal would have a reasonable prospect of success;
or
(ii) there is some other compelling reason why the appeal
should be heard, including conflicting judgments on the
matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of
section 16(2)(a); and
(c) where the decision sou ght to be appealed does not dispose of
all the issues in the case, the appeal would lead to a just and
prompt resolution of the real issues between the parties.”
[4] In Smith1Plasket AJA (as he then was) held that:
“7. What the test of reasonable prospe cts of success postulates is a
dispassionate decision, based on the facts and the law, that a
court of appeal could reasonably arrive at a conclusion different
to that of the trial court. In order to succeed, therefore, the
appellant must convince this court on proper grounds that he
has prospects of success on appeal and that those prospects
are not remote but have a realistic chance of succeeding. More
is required to be established than that there is a mere possibility
of success, that the case is argu able on appeal or that the case
cannot be categorised as hopeless. There must, in other words,
be a sound, rational basis for the conclusion that there are
prospects of success on appeal.”2
[5] These sentiments were shared by Schippers AJA in Mkhitha3 where the
following was said:
“17. An applicant for leave to appeal must convince the court on
proper grounds that there is a reasonable prospect or realistic
chance of success on appeal. A mere possibility of success, an
arguable case or one that is not hopeless, is not enough. There
must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal .”
[6] In the light of this application section 8(1) of PAJA provides:
1 Smith v S 2012 (1) SACR 567 (SCA) Para 7.
2 S v Mabena & Another 2007 (1) SACR 482 (SCA) Para 22.
3 MEC for Health, Eastern Cape v Mkhitha and another (1225) [2016] ZASCA 176 (25 November
2016) Para 17.
“8(1) The court or tribunal, in proceedings for judicial review in terms of
section 6(1), may grant any order that is just and equitable , including
orders —
(a) directing the administrator —
(i) to give reasons; or
(ii) to act in the manner the court or tribunal requires;
(b) prohibiting the administrator from acting in a particular manner;
(c) setting aside the administrative action and —
(i) remitting the matter for reconsideration by the administrator,
with or without directions; or
(ii) in exceptio nal cases —
(aa) substituting or varying the administrative action or
correcting a defect resulting from the administrative
action; or
(bb) directing the administrator or any other party to the
proceedings to pay compensation;
(d) declaring the rights of the parties in respect of any matter to which
the administrative action relates;
(e) granting a temporary interdictor other temporary relief or
(f) as to costs.”
[7] In line with the provision of section 8 (1)(c) of PAJA, Section 172(1)(b) of the
Constitution provides:
“1. When deciding a constitutional matter within its power, a court —
(a) …..
(b) May make any order that is just and equitable ….”
For context, section 8 (1)(c)(i) of PAJA and section 172 (1)(b) of the
Constitution must be read together.
[8] Despite its wordiness, application for leave to appeal d emonstrates that the
applicants are aggrieved by the remittal of the matter for reconsideration by
the fourth respondent. The court , in its discretion may grant any remedy that
is just and equitable in terms of section 8(1) of PAJA. The applicant s, in their
wisdom sought a relief in paragraph 5 of the notice of motion in the following
terms:
“5. Granting applicants such further and alternative relief as th is
honourable court may deem fit .”
This relief is wide enough to accommodate the remedy provided for in section
172(1)(b) of the Constitution and section 8( 1) (c) (i) of PAJA. Applicants ’
lament that the relief was not asked for by an y party is devoid of mer it.
[9] Section 8(1) of PAJA provides for just and equitable order. The power to make
such an order also derives from Section 172(1)(b) of the Constitution4. A
power to grant a just and equitable order is wide and flexible that it allows
courts to formulate an order that does not follow prayers in the notice of
motion or some other pleadings. This power enables courts to address the
real dispute between the parties by requiring them to take s teps aimed at
making their conduct to be consistent with the Constitution.5
[10] In Hoerskool Ermelo Moeseneke DCJ declared:
“97. A just and equitable order may be made even in instances
where the outcome of a constitutional dispute does not hinge on
constitutional invalidity of legislation or conduct. This ample and
flexible remedial jurisdiction in constitutional disputes permits a
court to forge an order that would place substance above mere
form by identifying the actual underlying dispute between the
parties and by requiring the parties to take steps directed at
resolving the dispute in a manner consistent with constitutional
requirements. In several cases, this Court has found it fair to
fashion orders to facilitate a substantive resolution of the
underlying dispute between the parties. Sometimes orders of
4 Head of Department, Mpumalanga Department of Education v Hoe rskool Ermelo 2010 (2) SA
415 (CC), 2010 BCLR 177(CC) Para 96 .
5 Economic Freedom Fighters and Others v Speaker of the National Assembly and another
(CCT76/2017) [2017] ZACC47; 2018(3) BCLR 259 (CC); 20178(2) SA 571 (CC) Para 211 .
this class have taken the form of structural interdicts or
supervisory ord ers. This approach is valuable and advances
constitutional justice particularly by ensuring that the parties
themselves become part of the solution .
[11] In a bewildered fashion the applicants seem to complain about fourth
respondents ’ incompetence; lack of skill and understanding of the relevant
statute . On that basis they suggested that remittal of the matter was
erroneous . The fallacy of this ground is that the applicants do not suggest
what must be done with the discipl inary proceedings. They do not an d did not
pray f or substitution or variation of the fourth respondent’s decision in terms of
section 8(1)(c)(ii)(aa) of PAJA . It is disingenuous of the applicant s to complain
about an order that seeks to ensure that there is finality in the disciplinary
proceedings. In fact, the applicants contend that the matter should have been
left at a point where the fourth respondent’s decision dated 28th February
2022 is reviewed and set aside. It was erroneous to take it further and remit
the matter for reconsideration in terms of section 8(1)( c)(i) of P AJA, so it is
argued.
[12] Fourth respondent is cited by the applicants in the instant proceedings. He is
cited in his capacity as a chairperson of the disciplinary enquiry who took a
decision ostensibly against the fi rst applicant . Section 8( 1) (c) (i) of PAJA
provides that the court in proceeding s for judicial review may grant an order
“remitting the matter for reconsideration by the administrator with or without
directions ”. It is preposterous and disingenuous of the applicants to suggest
that the matter should have been left open and without finality. This ground or
point is equally unmeritorious and wasteful. The fourth respondent was
lawfully appointed to deal with first applicant ’s disciplinary proceedings. It is
not in dispute that those proceedings are still extant.
[13] The fourth respondent was appointed by the Premier in terms of section 31(5)
of Eastern Cape Traditional Leadership and Governance Act 1 of 2017 to
preside over the inquiry. In terms of section 31(13) of this Act, the Chairperson
is obliged to finalize the disciplinary proceedings by ultimately pronouncing
the sanction. It goes without saying that the Presiding Officer fin alises his
proceedings by giving either a verdict of guilty or of not guilty. Other
processes depend on the nature of verdict given. A decision must be taken
and it is that decision that finalises the disciplinary proceedings. Depending on
the nature of th e proceedings, some decisions are multi -stage d decisions.
[14] During the hearing of the matter Mr Ngumle contended that the cour t failed to
engage the parties o n the remittal of the matter during the hearing of the main
application. He further contended that the remittal is dependent on the facts of
the case; and that it should not be granted if there is a prejudice to the other
party. The remittal does not necessarily follow court’s decision reviewing and
setting aside administrative decision, so is the contention.
[15] Section 8(1)(c)(i) of PAJA empowers this court to set aside the administrative
decision And remit the matter for reconsideration by the administrator. The
administrator in this case is the fourth respondent to whom the matter was
remitted. The usage of the word And in the text is very important. The word
denotes that remittal of the matter for r econsideration is a quintessence and
an essential part of a review order. I will deal with this aspect later in this
judgment. A remittal order collectively arise from the same facts as review
order.
[16] A fundamental tenet of statutory interpretation is that the words in a statute
must be given their ordinary grammatical meaning, unless to do so would
result in an absurdity6. The ordinary grammatical meaning of the word And is
to serve as a conjunction ; it is used to connect words of the same parts of
speech, clauses or sentences that are to be taken jointly; connecting identical
comparatives7. The power to set aside the administrative decision must be
undertaken together with the power to remit the matter to the administrator for
reconsideration. The sentence empowering the court to set aside the
administrative decision is the same sentence that gives power to remit the
6 SATAWU and Another v Garvas and Others 2013 (1) SA 83 ( CC); 2012 (8) BCLR 840 (CC) Para
37.
7 South African Concise Oxford Dictionary .
matter to be re considered by the administrator, but it is connected by the word
And.
[17] The power to set aside the administrative decision is the same power to remit
the matter for reconsideration . When the court is remitting the matter it is
exercising exactly the same power it has to review and set aside the
administrative decision. A powe r to remit the matter is part and parcel of the
power to review and set aside the decision.
[18] The power to remit the matter in terms of section 8(1) (c) (i) naturally flows from
the power to review and set aside the administrative action or decision. I t is
consequential upon the exercise of the power to review and set aside the
decision. Its aim is to give effect to the power to review and set as ide the
decision and that work must be undertaken jointly and or simultaneously.
[19] It is also important t o consider the synonyms of the word And, with a view to
give a proper construction of the text in section 8(1) (c)(i) of PAJA. The
synonyms are the following: “together with, along with, with, as well as, in
addition to, and including, also, too, beside , furthermore, moreover, plus, and
whatsmore”. All thes e words or synonyms demonstrate that a decision by the
court may be taken contemporaneously with and as part of the order granting
review and set aside of the administrative decision without any preliminary
exercise of engaging in a distinct and separate debate or discussion about the
necessity of granting an order remitting the matter for reconsideration by the
administrator. The argument that there should have been a separate oral
argument about a need to remit the matter in terms of section 8(1) ( c)(i) of
PAJA is without merit. Remittal of the matter i n terms of section 8(1) (c)(i) of
PAJA is the quintessence of the review appl ication referred to in section 6 (1)
and 8(1) of PAJA. An order remit ting the matter for reconsideration by the
administrator must be taken together with and alongside the decision
reviewing and setting aside the administrative action or decision on the same
facts and contentions.
----
[20] However, Mr Ngumle was requested to a dvance an argument he would
advance before the grant of the main judgment ha d he been afforded the
opportunity to do so. He stated that the facts of this case do not require the
remittal of the matter for reconsideration by the fourth respondent as the
administrator. He contended that the matter should have been remitted to the
second respondent ’s Department as it is that Department that had appointed
the fourth respondent. That argument is without merit. The empowering
provision provides for the remittal o f the matter to the administrator. An
administrator is defined to “mean an organ of state or any natural or juristic
person taking administrative action8”. No legal basis or whatsoever was laid
for the remittal of the matter for reconsideration by the Eastern Cape
Department of Cooperative Governance and Traditional A ffairs. This
contention is likewise unsustainable. In any event it is legally and factually
incorrect that the fourth respondent was appointed by the Department.
Section 31(5) of Eastern Cape Traditional and Leadership and Governance
Act 1 of 2017 empowers the Premier to appoint the Chairperson and the
applicants acknowledge that in their founding papers.
[21] No prejudice was shown to exist by the applicant as a result of the remittal of
the matter for reconsideration. Technical objections to less than perfect
procedural steps should not be permitted, in the absence of prejudice, to
interfere with the expeditious and, if possible, inexpensi ve decision of cases
on their merits9. Although i n the case of Maluleka the dictum was made in the
context of Rules of court, it applies equally on the facts of this case. There can
never be a basis for the court to countenance an unjustified delay in any
proceedings.
[22] When this case was decided it was ready for hearing and to be adjudicated
upon. The status quo ante reverted when this court reviewed and set aside
fourth respondent ’s decision dated 28th February 2022. The administrative
proceedings ar e as they were before the hearing and decision. Mr Ngumle
8 Section 1 of Promotion of Administrative Justice Act 3 of 2000 - See also Section 6 (1) and (2) of
Promotion of Administrative Justi ce Act 3 of 2000 .
9 Trans -African Insurance Co Ltd v Maluleka 1956 (2) SA 273 at 277 A-B.
contended that this court should have only reviewed a nd set aside fourth
respondent decision and leave the matter at that. It would be for the
respondent s to decide what to do with that matter. I disagree. The
empowering provisions confers powers to the court to remit the matter for
reconsideration as part of its review jurisdiction. The power to remit the matter
for reconsideration by the administrator is aimed at achieving speedy and
expeditious resolution of the administrative proceedings .
[23] I find it stra nge that authorities referred to in the main judgment when an order
remitting the matte r was granted are not adverted to by the applicant s in their
leave to appeal application . It is even more stra nge that in one of the
authorities Mr Ngumle, who is applicants ’ Counsel was appearing as Counsel
for the respondent and no complaint or leave to appeal against that order was
lodged. The application for lea ve to appeal cannot succeed as it demonstrates
no prospect of success on appeal. The remaining issue is that of costs .
Costs
[24] There is no reason why costs should follow the result. The applicant s are
liable to pay costs of this application.
[25] Mr Ngumle , as a seasoned lawyer is assumed to have advised the applicants
of the authorities r eferred to in the matter of Bu qwana10 where Mr Ngumle
was one of the legal practitioners appearing in the matter. Had those
authorities and authorities referred to herein been followed, this application
would not have been launched. This application amounts to an abuse of court
process and scarce judicial resources.
[26] Whilst the applicant s clearly and perfectly understand that the matter was
remitted to the fourth respondent, that understanding flowing from paragraph
54, 57.1, 57.2 and 57.7 of the main judgment, the applicant s amassed
audacity to impolitely refer to remittal order as “forml ess incoherent,
10 Buqwana v Road Accident Fund Appeal Tribunal and Other (3823/2018) [2019] ZACEMHC
67(12 November 2019) Para 16 .
incomplete and impermissibly vague.” These adjectives are impolite ,
condescending and contemptuous to the court. It is so especially that there is
no basis laid in the application for leave to appeal for that kind of unprovoked
attack to be launched against the work of the court. An attack of incoherence
(inclarity and confusion), formless ness (without shape or structure) and other
descriptive words can only be justified when based o n fact. An unjustified
attack to the work of the court by a litigant who is not happy with a part of the
judgment and its order (not with the whole judgment and order) cannot be
countenanced. This court is displeased with that unjustified conduct . As a
result, costs on an attorney and client scale is justified in the circumst ances.
[27] Let me be clear: It is not permissible for a disgruntled litigant to besmir ch the
reputation of the judiciary or its members without fear of consequences. He or
she who abandons all ethical standard in pursuit of a cause must prepare to
meet this court ’s reproach, and the award of punitive costs that naturally
follows11. A malevolent behaviour or attitude of disgruntled unsuccessful
litigant is intolerable.
[28] In the result I make the following order:
28.1 The application for leave to appeal is dismissed.
28.2 The appl icants are ordered to pay costs of the application on an
attorney and client scale jointly and severally , the o ne paying the
other to be absolved (Scale C) .
______________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING )
11 Secretary of the Judicial Commission of Inquiry into allegation of State Capture, corruption and
fraud in the public sector including organ of State v Zuma and others 2021(5) SA 327 (CC);
2021(9) BCLR 992 (CC) Para 136; Limpopo Legal Solution v Eskom Holdings SOC Limited
[2017] ZACC 34; 2017(2) BCLR 1497 (CC) P ara 36
APPEARANCES:
For the Applicant : Adv Ngumle
Instructed by : DZ DUKADA & CO
73 Nelson Mandela Drive
Mthatha
Ref:VMS/tm/
Email: duxlaw@telkomsa.net
For the Respondent : Adv Mdodana
Instructed by : STATE ATTORNEY
94 Sission Street
Fortgale
Mthatha
Ref:943/22 -A8H
Email:XHanise@justice.gov.za
Matter heard on : 02 July 2025
Delivered on : 08 July 2025