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

¹⁷ Forsyth, , supra note 16, at 242, Seerden & Stroink, supra note 16, at 119, Schønberg, supra note 16, at 71-72, see also Joined Cases 7/56 and 3-7/57, Algera v Common Assembly, 1957 E.C.R. 39 and Cases 205 to 215/82, Deutsche Milchkontor GmbH et al. v Germany, 1983 E.C.R. 2633.Google Scholar

¹⁸ Forsyth, , supra note 16, at 242.Google Scholar

¹⁹ Quoted and discussed by Forsyth, supra note 16, at 243.Google Scholar

²⁰ Id.Google Scholar

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

³⁰ Case 112/77, Töpfer v Commission, 1978 E.C.R. 1019; Case 188/82, Thyssen v Commission, 1983 E.C.R. 3721, Case 15/85, Consorzio Doopertaive d'Abruzzo v Commission, 1987 E.C.R. 1005, Seerden & Stroink, supra note 16, at 284.Google Scholar

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

⁴² Id.Google Scholar

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