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Published online by Cambridge University Press: 06 March 2019
The doctrine of legitimate expectation was authoritatively accepted as part of South African administrative law in the landmark case of Administrator, Transvaal v Traub in 1989. In that case Chief Justice Corbett extended the scope of application of the rules of natural justice, specifically the audi principle, beyond the traditional “liberty, property and existing rights” formula to cases where something less than an existing right, a legitimate expectation, required a fair procedure to be followed. This acceptance followed the trend in other Commonwealth jurisdictions to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. Although Chief Justice Corbett expressly stated that the content of the expectation may be substantive or procedural in nature, the protection of that expectation, if found to be legitimate, was exclusively procedural. Since the Traub decision, the doctrine of legitimate expectation has been deeply entrenched in South African administrative law to extend the scope of procedural rights afforded individuals affected by administrative action. It is now an established principle of South African administrative law that a person, who has a legitimate expectation, flowing from an express promise by an administrator or a regular administrative practice, has a right to be heard before administrative action affecting that expectation is taken. The doctrine, has however, by and large, remained one that provides procedural protection in South Africa. In a number of recent decisions by South African courts, ranging from the High Court to the Supreme Court of Appeal and the Constitutional Court, there have been increasing calls for the application of legitimate expectations beyond procedural claims.
1 Administrator, Transvaal v Traub 1989 (4) SA 731 (A).Google Scholar
2 For a discussion of this development see Hoexter, Cora, The New Constitutional Administrative Law Volume 2, 209 (2002); Devenish, G E et al., Administrative Law and Justice in South Africa, 307 (2001); Hlophe, John, Legitimate Expectation and Natural Justice: English, Australian, and South African Law, 104 SALJ 165 (1987).Google Scholar
3 The audi alteram partem principle, which in its most basic form requires the administrator to afford affected parties the right to be heard before taking a decision which would adversely affect them.Google Scholar
4 Traub, , supra note 1, at 761 D-G.Google Scholar
5 Id. 754G – 761D where Corbett CJ examines the development of the doctrine in English law and also refers to the acceptance of the doctrine in Australia and New Zealand.Google Scholar
6 Id. 758D: The expectation may be that the individual will acquire some substantive benefit, such as a license, that is a substantive expectation, or simply that the individual will be heard before a decision is taken, that is a procedural expectation. Corbett CJ also notes that the two forms of expectation may even merge, Id. 758E.Google Scholar
7 Id. 761E, 764A.Google Scholar
8 See Pretorius, Daniel Malan, Ten Years After Traub: The Doctrine of Legitimate Expectation in South African Administrative Law, 117 SALJ 520 (2000); Hoexter, supra note 2, at 209.Google Scholar
9 Hoexter, , supra note 2, at 210.Google Scholar
10 See paragraphs 0 to 0 below.Google Scholar
11 Craig, P.P., Administrative Law, 611 (1999). The labels substantive and procedural in this context refers to the relief that the legitimate expectation entitles the individual to as opposed to the content of the expectation, which, at least in procedural legitimate expectation instances may be either substantive or procedural in nature, see note 6.Google Scholar
12 In Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services) (2001) 2 SCR 281 at paragraph 35 the minority judgement rejected substantive protection of legitimate expectations in Canadian law. The majority decided the case on different grounds. See also Reference re Canada Assistance Plan (BC) (1991) 83 DLR (4th) 297 (SCC). In Attorney General, New South Wales v Quin (1990) 93 ALR 1 (HC) the doctrine was rejected in Australian law, see also Stewart, Cameron, Substantive Unfairness: A New Species of Abuse of Power?, 28 Fed. L. Rev. 617 (2000) at 634.Google Scholar
13 In 1997 the Court of Appeal described the doctrine as “heresy” in R v Secretary of State for the Home Department, Ex parte Hargreaves and Others (1997) 1 WLR 906 (CA) at 921. However, in R v North and East Devon Health Authority, ex parte Coughlan (1999) LGR 703 the Court of Appeal seems to accept the doctrine as part of English law.Google Scholar
14 See paragraphs 0 to 0 below.Google Scholar
15 Case 81/72, Re Civil Service Salaries: E.C. Commission v E.C. Council, 1973 E.C.R. 575.Google Scholar
16 Søren Schønberg, Legitimate Expectations in Administrative Law 118 (2003); C.f. Forsyth, The Provenance and Protection of Legitimate Expectations, 47 CAMB. L. J. 238, 242-244 (1988). The protection of legitimate expectations are in fact still stronger in German law today than is the case in EU law, see, Administrative Law of the European Union, Its Member States and the United States 285 (Seerden, Rene & Stroink, Frits eds., 2002).Google Scholar
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18 Forsyth, , supra note 16, at 242.Google Scholar
19 Quoted and discussed by Forsyth, supra note 16, at 243.Google Scholar
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21 Schønberg, supra note 16, at 117.Google Scholar
22 Craig, P.P., Substantive Legitimate Expectations in Domestic and Community Law, 55 Camb. L. J. 289 (1996) at 306.Google Scholar
23 That is informal representations made by administrators such as promises or long-standing practices, for example based on an existing policy.Google Scholar
24 Case 54/65, Châtillon v High Authority, 1966 E.C.R. 185. It is interesting to note that this case predates the English law case of Schmidt v Secretary of State for the Home Affairs [1969] 2 Ch. 149, which is generally viewed as the case in which Lord Denning created the English law concept of legitimate expectations.Google Scholar
25 Case 81/72, 1973 E.C.R. 575. Forsyth, supra note 16, at 242; Schønberg, supra note 16, at 118.Google Scholar
26 Case 81/72 at 584-5.Google Scholar
27 Id. at 584.Google Scholar
28 Case 78/77, Lührs v Hauptzollamt Hamburg-Jonas, 1978 E.C.R. 169; Case 265/85, Van den Bergh en Jurgens v Commission, 1987 E.C.R. 1155; Schønberg, supra note 16, at 119; E. Sharpston, Legitimate Expectations and Economic Reality, 1990 ELR 103 at 156.Google Scholar
29 Case T-123/89, Chomel v Commission, 1990 E.C.R. II-131.Google Scholar
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31 Case 265/85, Van den Bergh en Jurgens BV and Van Dijk Food Products (Lopik) BV v Commission, 1987 E.C.R. 1155, Case 52/81, OHG Firma Werner Faust v Commission, 1982 E.C.R. 3745.Google Scholar
32 Case T-243/94, British Steel v Commission, 1997 E.C.R. I-1887; Case 78/77, Lührs v Hauptzollamt Hamburg-Jonas, 1978 E.C.R. 169; Case 265/85, Van den Bergh en Jurgens v Commission, 1987 E.C.R. 1155; Joined Cases 424-425/85, Frico v VIV, 1987 E.C.R. 2755; Schønberg, supra note 16, at 127-8; Seerden & Stroink, supra note 16, at 284.Google Scholar
33 Case C-80/89, Behn v Hauptzollamt Itzehoe, 1990 E.C.R. I-2659.Google Scholar
34 Schønberg, supra note 16, at 125.Google Scholar
35 Schønberg, supra note 16, at 120.Google Scholar
36 Joined Cases 424-425/85, Frico v VIV, 1987 E.C.R. 2755.Google Scholar
37 Case 74/74, CNTA v Commission, 1975 E.C.R. 533, Case C-400/92, Germany v Commission, 1994 E.C.R. I-4701.Google Scholar
38 Case 344/85, Ferriere San Carlo v Commission, 1987 E.C.R. 4435.Google Scholar
39 Case 120/86, Mulder v Minister van Landbouw en Visserij, 1988 E.C.R. 2321; Case 74/74, CNTA v Commission, 1975 E.C.R. 533; Case 96/77, SA Ancienne Maison Marcel Bauche et SARL Francois Delquignies v Administration francaise des daouanes, 1978 E.C.R. 383.Google Scholar
40 Id.; Schønberg, supra note 16, at 128.Google Scholar
41 Schønberg, supra note 16, at 128.Google Scholar
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43 Case 120/86, Mulder (I) v Minister van Landbouw, 1988 E.C.R. 2321.Google Scholar
44 Id.Google Scholar
45 Case 120/86, Mulder (I) v Minister van Landbouw, 1988 E.C.R. 2321; Joined Cases C-104/89 & 37/90, Mulder v Council and Commission, 1992 E.C.R. I-3061.Google Scholar
46 Joined Cases C-104/89 & 37/90, Mulder v Council and Commission, 1992 E.C.R. I-3061; Sharpston, supra note 28; Craig, supra note 22, at 308-309.Google Scholar
47 Case 120/86, Mulder (I) v Minister van Landbouw, 1988 E.C.R. 2321; Joined Cases C-104/89 & 37/90, Mulder v Council and Commission, 1992 E.C.R. I-3061, Case C-152/88, Sofrimport SARL v Commission, 1990 E.C.R. I-2477, Case C-189/89, Spagl v Hauptzollamt Rosenheim, 1990 E.C.R. I-4539; Schønberg, supra note 16, at 149-150.Google Scholar
48 Forsyth, Christopher, Wednesbury Protection of Substantive Legitimate Expectations, 1997 Pub. L 375 at 381, Paul Craig & S⊘ren Sch⊘nberg, Substantive Legitimate Expectations after Coughlan, 2000 Pub. L 684 at 697, Schønberg, supra note 16, at 150.Google Scholar
49 Schønberg, supra note 16, at 150. His analysis is supported by that of Sharpston, supra note 28.Google Scholar
50 Id., at 155.Google Scholar
51 Joined Cases 424-425/85, Frico v VIV, 1987 E.C.R. 2755, Schønberg, supra note 16, at 12; Sharpston, supra note 28, at 106; Craig, supra note 11, at 611; Forsyth, supra note 48, at 375; Craig, supra note 22, at 299, 304, 311.Google Scholar
52 Schønberg, supra note 16, at 12-23, Craig & Sch⊘nberg, supra note 48, at 685.Google Scholar
53 Forsyth, , supra note 48, at 384.Google Scholar
54 Joined Cases 205-215/82, Deutsche Milchkontor GmbH et al. V Germany, 1983 E.C.R. 2633.Google Scholar
55 Seerden, & Stroink, , supra note 16, at 284, Schønberg, supra note 16, at 147-148‥Google Scholar
56 See note 30 supra.Google Scholar
57 Some member states of the EU, notably Germany and the Netherlands, however, afford greater protection to the individual in such cases and in fact weigh up the legal certainty interests against legality interests when adjudicating substantive legitimate expectation claims. See Forsyth, supra note 16, at 243 where he discusses a German case of 1956 in which it was stated that both legal certainty and legality are elements of the Rechtstaatprinzip (rule of law) and should consequently be weighed up against each other in substantive legitimate expectation claims. See also Gio ten Berge and Rob Widdershoven, The Principle of Legitimate Expectations in Dutch Constitutional and Administrative Law, in NETHERLANDS REPORTS TO THE FIFTEENTH INTERNATIONAL CONGRESS OF COMPARATIVE LAW 422 (Hondius, E.H. ed., 1998) and Seerden & Stroink, supra note 16, at 170 for a discussion of the Dutch position.Google Scholar
58 Supra note 1.Google Scholar
59 Hoexter, supra note 2, at 209-211.Google Scholar
60 2002 (4) SA 60 (W) at paragraph 28, quoted with approval by the Supreme Court of Appeal in South African Veterinary Council and another v Szymanski 2003 (4) BCLR 378 (SCA) at paragraph 19 and in Minister of Environmental Affairs and Tourism and others v Phambili Fisheries (Pty) Ltd and another [2003] 2 All SA 616 (SCA) at paragraph 65.Google Scholar
61 Phillips case, supra note 60, at paragraph 28.Google Scholar
62 President of the Republic of South Africa and others v South African Rugby Football Union and others 2000 (1) SA 1 (CC) at paragraph 216, Szymanski case, supra note 60, at paragraph 21.Google Scholar
63 Phillips case, supra note 60, at paragraph 28.Google Scholar
64 Traub case, supra note 1, at 761.Google Scholar
65 Id.Google Scholar
66 Pretorius, supra note 8, at 524 to 529.Google Scholar
67 Compare the High Court judgements in Putco Limited v The Minister of Transport for the RSA and others 2003 JDR 0484 (W) (assuming for purposes of the judgement that the doctrine of legitimate expectation forms part of South African law), University of the Western Cape v Member of Executive Committee for Health and Social Services 1998 (3) SA 124 (C) (stating that it is in the interest of good governance that administrators should be held to their promises as long as those are intra vires) and Durban Add-Ventures Ltd v Premier, KwaZulu-Natal, and Others (No 2) 2001 (1) SA 389 (N) (stating the legitimate expectations can only be protected procedurally and not substantively).Google Scholar
68 Meyer v Iscor Pension Fund 2003 (2) SA 715 (SCA), South African Veterinary Council and another v Szymanski 2003 (4) SA 42 (SCA).Google Scholar
69 Premier, , Province of Mpumalanga and another v Executive Committee of the Association of Governing Bodies of State-Aided Schools: Eastern Transvaal 1999 (2) BCLR 151 (CC), Bel Porto School Governing Body and others v Premier of the Province, Western Cape and another 2002 (9) BCLR (CC).Google Scholar
70 Meyer's case, supra note 68, at paragraph 27.Google Scholar
71 Meyer's case, supra note 68, at paragraph 28; Szymanski's case, supra note 68, at paragraph 16.Google Scholar
72 Note 68 supra.Google Scholar
73 Meyer's case, supra note 68, at paragraph1.Google Scholar
74 Id.Google Scholar
75 Id. at paragraph 2 and 9.Google Scholar
76 Id.Google Scholar
77 Id. at paragraph 3.Google Scholar
78 Id. at paragraph 5.Google Scholar
79 Id.Google Scholar
80 Id.Google Scholar
81 Id. at paragraph 25.Google Scholar
82 Id. at paragraph 26.Google Scholar
83 Id. at paragraph 22.Google Scholar
84 Id. at paragraphs 27 and 28.Google Scholar
85 Id. at paragraph 27.Google Scholar
86 Id.Google Scholar
87 Id.Google Scholar
88 Id.Google Scholar
89 Id. at paragraph 28.Google Scholar
90 Id. at paragraphs 29 to 30.Google Scholar
91 Supra note 68.Google Scholar
92 Id. at paragraph 2.Google Scholar
93 Id.Google Scholar
94 Id.Google Scholar
95 Id. at paragraph 3.Google Scholar
96 Id. at paragraph 14.Google Scholar
97 Id. at paragraph 15.Google Scholar
98 Meyer's case, supra note 68.Google Scholar
99 Szymanski's case, supra note 68, at paragraph 15.Google Scholar
100 Id.Google Scholar
101 Id. at paragraphs 16-21.Google Scholar
102 Premier, Province of Mpumalanga and another v Executive Committee of the Association of Governing Bodies of State-Aided Schools: Eastern Transvaal 1999 (2) BCLR 151 (CC) and Bel Porto School Governing Body and others v Premier of the Province, Western Cape and another 2002 (9) BCLR (CC).Google Scholar
103 Supra note 102.Google Scholar
104 The MEC for education.Google Scholar
105 Premier, , Province of Mpumalanga case, supra note 102, at paragraph 2.Google Scholar
106 Id. at paragraphs 2 and 7.Google Scholar
107 Id. at paragraph 17.Google Scholar
108 Id. at paragraph 3.Google Scholar
109 Id.Google Scholar
110 Id. at paragraphs 31 and 38.Google Scholar
111 Constitution of the Republic of South Africa, act 200 of 1993. 112 Premier, Province of Mpumalanga case, supra note 102, at paragraph 30.Google Scholar
113 Id. at paragraph 42.Google Scholar
114 Id. at paragraph 46.Google Scholar
115 Id. at paragraph 51.Google Scholar
116 Id. In common law a court could only substitute its own decision on the merits for that of the administrator in very narrow circumstances. These included cases where the end result is a foregone conclusion and referring the matter back to the administrator would only be a waste of resources and cases where the administrator exhibited such degree of bias that referring the matter back to him or her would result in an injustice, Id. at paragraph 50.Google Scholar
117 Id. at paragraph 52.Google Scholar
118 Supra note 102.Google Scholar
119 These schools argued that while they employed their special assistants themselves, the former non-whites state schools did not have to do so. The assistants at the latter schools were employed by the respective education departments. The former whites-only schools were finding it increasingly difficult to afford their special assistants and therefore appealed to the education department to employ the special assistants working at these schools, Id. at paragraphs 11 to 19.Google Scholar
120 Justices Goldstone, Kriegler, Madlanga, Somyalo and Yacoob concurring.Google Scholar
121 Justices Mokgora and Sachs filed a joint opinion and justices Madala and Ngcobo each filed their own opinions.Google Scholar
122 Bel Porto School case, supra note 102, at paragraph 96.Google Scholar
123 Bel Porto School case, supra note 102, at paragraphs 191 to 218.Google Scholar
124 Id. at paragraph 207.Google Scholar
125 Id. at paragraphs 208 to211.Google Scholar
126 Id. at paragraph 209.Google Scholar
127 Id. at paragraphs 211 to 213.Google Scholar
128 As Madala J clearly indicates Corbet CJ already made this clear in the Traub case, supra note 1, which originally adopted the legitimate expectation doctrine in South African law.Google Scholar
129 See paragraphs 0 and 17 above.Google Scholar
130 See paragraph 1 note 1 above.Google Scholar
131 Supra note 1.Google Scholar
132 Bel Porto School case, supra note 102, at paragraphs 210 to 212.Google Scholar
133 In the Traub case, supra note 1, at 758D-E Corbett CJ concludes with reference to the relevant English law: “As these cases and the quoted extracts from the judgments indicate, the legitimate expectation doctrine is sometimes expressed in terms of some substantive benefit or advantage or privilege which the person concerned could reasonably expect to acquire or retain and which it would be unfair to deny such person without prior consultation or a prior hearing; and at other times in terms of a legitimate expectation to be accorded a hearing before some decision adverse to the interests of the person concerned is taken.” It is clear from this extract that although the content of the expectation may be substantive or procedural in nature, the protection afforded remains procedural.Google Scholar
134 Riggs, Robert E, Legitimate Expectation and Procedural Fairness in English Law, 37 Am. J. of Comparative L. 395 (1988).Google Scholar
135 Bel Porto School case, supra note 102, at paragraph 213.Google Scholar
136 Note 1 supra.Google Scholar
137 Note 68 supra. See the discussion of that case in paragraphs 0 to 0 above.Google Scholar
138 As was suggested by Brand JA in Meyer v Iscor Pension fund, Id., and as illustrated by Corbet JA in the Traub case, note 1 supra, when he accepted the doctrine of legitimate expectation as part of South African law.Google Scholar
139 Supra note 68. See the discussion of that case in paragraphs 0 to 0 above.Google Scholar
140 Supra note 102. See the discussion in paragraph 0 above.Google Scholar
141 See paragraph 0 above.Google Scholar
142 See paragraph 0 above.Google Scholar
143 See paragraph 0 above.Google Scholar
144 Brand JA in Meyer v Iscor Pension Fund, supra note 68, at paragraph 27.Google Scholar
145 Craig, & Sch⊘nberg, , supra note 48, at 701.Google Scholar
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