Nothemba Mkutuka and Another v The Minister of Land Affairs and Others

The applicants had previously brought a review application which was dismissed on 21 July 2025. The matter was remitted to the Regional Land Claims Commissioner for determination under the Restitution of Land Rights Act 22 of 1994. The applicants now sought leave to appeal that judgment. Their central grievance was that the court had found that correspondence dated 25 June 2019 and subsequent related correspondence did not constitute a reviewable "decision" under the Promotion of Administrative Justice Act (PAJA). The letter of 7 October 2019, although using the word "decision", expressly recorded that the verification process was ongoing, that the second respondent (Zithembile Mkutuka) had stated that Jeremia was his father, and invited the applicants to provide proof to the contrary if they disputed this. The letter did not direct payment or conclude the matter. A non-party, Mr Balekile France Mbebe, also applied for leave to appeal, despite not being cited as a party and having no order made against him.

• Whether leave to appeal should be granted under section 17(1) of the Superior Courts Act 10 of 2013
• Whether correspondence from the Land Claims Commissioner constituted a reviewable 'decision' under PAJA
• Whether a non-party against whom no order was made has standing to appeal
• What constitutes a 'decision' susceptible to judicial review under PAJA
• Whether the appeal would have reasonable prospects of success or whether there were compelling reasons for it to be heard

1. The application for leave to appeal by the applicants is dismissed. 2. There is no order as to costs in the leave proceedings.

For conduct to constitute a reviewable "decision" under PAJA, the decisional process must be sufficiently complete and final. Correspondence that is provisional in nature, invites further engagement, keeps the process open for additional information, and has not caused prejudice does not cross the threshold into a reviewable "decision". The test is whether prejudice has already resulted or is inevitable. An appeal lies against the order of a court, not against its reasons; therefore a non-party against whom no order was made has nothing to appeal. Leave to appeal under section 17(1) of the Superior Courts Act requires either a reasonable prospect of success (measured with certainty, not mere possibility) or compelling reasons (requiring cogent and convincing arguments, not vague assertions).

The court observed that the applicants were "merely dragging out the inevitable" and that continued recourse to premature litigation risks delay and prejudice to other parties. The court noted that appeals are about obtaining a different result, not simply receiving a second opinion. The court remarked that once the Commissioner makes a final determination, the applicants will have the opportunity to challenge it in review proceedings if they are aggrieved, suggesting that the proper course is to await finality rather than engage in piecemeal litigation.

This case provides important guidance on when administrative correspondence becomes a reviewable "decision" under PAJA in the land restitution context. It emphasizes that substance prevails over form, and that correspondence which is provisional, invites further engagement, and does not cause irreversible prejudice does not constitute a final decision susceptible to review. The judgment also reinforces the principle of ripeness in administrative law - that premature litigation before a final determination is made can cause delay and prejudice. It clarifies the threshold requirements for leave to appeal under section 17(1) of the Superior Courts Act, particularly in the context of administrative review applications in land claims matters.