Mthetho Hlamandana and Bhekameva Royal Family v Premier, Eastern Cape Provincial Government and Others

The applicants sought leave to appeal against a judgment delivered on 4 February 2025. The main application involved judicial review proceedings in which the fourth respondent's decision dated 28 February 2022 (arising from a disciplinary inquiry into the first applicant) was reviewed and set aside. The fourth respondent had been appointed by the Premier under section 31(5) of the Eastern Cape Traditional Leadership and Governance Act 1 of 2017 to preside over a disciplinary inquiry. The court in the main judgment not only set aside the fourth respondent's decision but also remitted the matter back to the fourth respondent for reconsideration. The applicants were aggrieved by the remittal order, arguing it was not requested by any party, that the fourth respondent was functus officio, and that the order was formless, incoherent, incomplete and impermissibly vague. The respondents did not oppose the leave to appeal application.

• Whether leave to appeal should be granted in terms of section 17(1) of the Superior Courts Act where the applicants challenged a remittal order made under section 8(1)(c)(i) of PAJA
• Whether a court exercising review powers under PAJA must separately engage parties on the question of remittal before making such an order
• Whether a court may remit a matter for reconsideration to an administrator who is allegedly functus officio
• Whether a remittal order forms part of the relief under section 8(1)(c)(i) of PAJA even when not expressly requested in the notice of motion
• Whether the court was entitled to make a just and equitable order under section 172(1)(b) of the Constitution and section 8(1) of PAJA

The application for leave to appeal was dismissed. The applicants were ordered to pay costs on an attorney and client scale (Scale C) jointly and severally, the one paying the other to be absolved.

The binding legal principles established are: (1) A power to remit a matter for reconsideration under section 8(1)(c)(i) of PAJA is part and parcel of the power to review and set aside an administrative decision, flowing naturally and contemporaneously from the same remedial power; (2) The conjunction 'and' in section 8(1)(c)(i) PAJA connects the power to set aside with the power to remit, indicating they must be exercised jointly or simultaneously as part of the same remedial jurisdiction; (3) A remittal order does not require separate oral argument or engagement with parties beyond the main review application, as it arises from the same facts and is consequential upon the exercise of the review power; (4) Courts may grant remittal orders under the broad prayer for 'such further and alternative relief' in conjunction with their powers under section 172(1)(b) of the Constitution and section 8(1) of PAJA to make just and equitable orders; (5) The test for leave to appeal under section 17(1) of the Superior Courts Act requires a sound, rational basis showing reasonable prospects of success - more than mere arguability or possibility of success.

The court made strong observations about judicial etiquette and the conduct of litigants. Zono AJ stated that it is not permissible for disgruntled litigants to besmirch the reputation of the judiciary or its members without consequences, and that those who abandon ethical standards in pursuit of a cause must prepare to meet the court's reproach through punitive costs awards. The court noted that malevolent behavior or attitudes by unsuccessful litigants are intolerable. The court also observed that technical objections to procedural steps should not be permitted, in the absence of prejudice, to interfere with expeditious and inexpensive resolution of cases on their merits. The court commented on the importance of avoiding unjustified delays in proceedings and emphasized that remittal orders serve the purpose of achieving speedy and expeditious resolution of administrative proceedings. The court expressed displeasure that the applicants failed to engage with the authorities cited in the main judgment, including one case where applicants' counsel had appeared and no complaint was made about a similar remittal order.

This case clarifies the scope and nature of remedial powers under PAJA and the Constitution in judicial review proceedings. It establishes that remittal orders under section 8(1)(c)(i) of PAJA are not separate or ancillary relief requiring independent justification, but form an integral part of the review power itself. The judgment emphasizes the broad 'just and equitable' powers available to courts under section 172(1)(b) of the Constitution and section 8(1) of PAJA to fashion appropriate remedies, including remittal for reconsideration even when not expressly sought. The case also serves as an important precedent on judicial etiquette and the consequences of unjustified attacks on judicial decisions, affirming that punitive costs may be awarded where litigants engage in intemperate criticism of court orders without factual foundation.