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ORDER
1. The application for leave to appeal by the applicants is dismissed.
2. There is no order as to costs in the leave proceedings.
JUDGMENT: LEAVE TO APPEAL
DU PLESSIS AJ
Introduction
[1] This is an application for leave to appeal against my judgment of 21 July 2025.
In that judgment, I dismissed the applicants’ review application . I remitted the matter
to the Regional Land Claims Commissioner (“the Commissioner”) for determination in
terms of the Restitution of Land Rights Act 22 of 1994.
Mr Mbebe
[2] I deal first with the application by Mr Balekile France Mbebe. Mr Mbebe was not
cited as a party to these proceedings. He is neither an applicant nor a respondent. The
order of 21 July 2025 made no finding against him and imposed no obligation upon
him. His name appeared in the judgment only in the course of recording the history of
the matter and his irregular involvement, for the relevant authorities to investigate. No
definite finding was made. It is a settled principle that an appeal lies against the order
of a court, not against its reasons. Because no order was made against Mr Mbebe,
there is nothing for him to appeal.1
The Applicants
[3] I then turn to the application by the applicants. Section 17(1) of the Superior
Courts Act 10 of 2013 provides that leave to appeal may only be granted where the
appeal would have a reasonable prospect of success, or if there are some other
1 Elan Boulevard (Pty) Ltd v Fnyn Investments (Pty) Ltd 2019 (3) SA 441 (SCA) at 448A.
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compelling reasons why the appeal should be heard . The word “would” requires a
measure of certainty , and not just a mere possibility. 2 Furthermore, compelling
reasons require cogent and convincing arguments, not vague assertions.3 Appeals are
about obtaining a different result, not simply receiving a second opinion.
[4] The applicants’ central grievance is that I held that the correspondence of 25
June 2019, and subsequent related correspondence, did not constitute a “decision”
susceptible to review under the Promotion of Administrative Justice Act .4 What they
seek to appeal is the dismissal of that finding.
[5] The applicants relied on Bhugwan v JSE Limited 5 for the argument that the
court erred in finding that the letter(s) did not constitute a “decision”. In that case, the
court stated6 that for conduct to qualify as a reviewable “decision” under PAJA, certain
elements should generally be present . In summary, these elements are a final
application or request addressed to the authority; the gathering of all relevant
information that must be placed before the authority ; an evaluative process in which
that information is weighed against the statutory framework; a conclusion as to how
the power should be exercised; and the actual exercise of the power based on the
conclusion. Whether these steps have occurred is a matter of degree, turning on
whether the decisional process is sufficiently complete to be ripe for review. The test,
as Baxter notes and is quoted in the judgment , is whether prejudice has already
resulted or is inevitable. Where unlawfulness is manifest and cannot be corrected by
further process, immediate review may follow. But absent finality and prejudice,
correspondence that reflects only a provisional stance does not cross the threshold
into “decision.”
[6] It is so that t he letter of 7 October 2019 uses the word “decision,” but what
matters is substance, not labels. That letter expressly recorded that the verification
matters is substance, not labels. That letter expressly recorded that the verification
process was ongoing; that Zithembile Mkutuka had stated that Jeremia was his father;
2 MEC for Health, Eastern Cape v Mkhitha [2016] ZASCA 176.
3 Talhado Fishing Enterprises (Pty) Ltd v Firstrand Bank Ltd t/a First National Bank [2023] ZAECQBHC 16.
4 3 of 2000.
5 [2009] ZAGPJHC 33.
6 Para 10.
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Date of hearing:
12 September 2025
Date of judgment:
16 September 2025
For the applicant:
SR Mhlawuli, attorney with right of
appearance in the High Court
For the respondent:
PV Msiwa SC instructed by MT Mlola
Attorneys Inc