Our Courts have missed another opportunity to definitively deal with the contentious question of whether a substantive legitimate expectation is competent in South African law.

The doctrine of legitimate expectation is a public law principle originating in English law, which envisages the regulation of public authorities in their exercise of discretionary powers.[1] There are two types of legitimate expectations:

  1. a procedural legitimate expectation - an expectation regarding the procedure a public authority will follow before making a decision; and
  2. a substantive legitimate expectation - an expectation regarding the actual decision a public authority will make.

Historically the doctrine has been recognised in South Africa as affording no more than the right to a fair hearing before an adverse decision is taken. In the case of Administrator, Transvaal v Traub,[2] Corbett CJ stated that "a reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority… and the contrary desirability of avoiding undue judicial interference in their administration".

South African legislation specifically makes reference to the doctrine, by stating in section 3 of the Promotion of Administrative Justice Act[3] that administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair, failing which it can be reviewed under section 6 of that Act, but what constitutes a legitimate expectation is not defined.

Over the years, our Courts have confirmed that reliance on the doctrine of legitimate expectation for any purpose presupposes that the expectation qualifies as legitimate. The requirements for the legitimacy of an expectation may be summarised as follows:

  1. The representation, in the form of a promise or established practice, which underlies the expectation must be clear, unambiguous and devoid of any relevant qualification;
  2. The expectation must have been induced by the decision maker;
  3. The representation must be competent and lawful for the decision maker to make; and
  4. The expectation must be reasonable.[4]

The Courts have however been hesitant in deciding whether substantive legitimate expectations should be recognised by our law, largely because the cases before them were poorly pleaded or substantiated.[5]

Most recently, in Abbott v Overstrand Municipality,[6] the Supreme Court of Appeal ("the SCA") considered an application for the review and setting aside of the Overstrand Municipality's decision to refuse to take steps to prevent damage to Mr Abbott's house, which he alleged was damaged by the flooding of the Klein River estuary, which his house borders. According to him, there was an established practice by the municipality to breach the sand-berm between the estuary and the sea when the water level in the estuary exceeded a certain height, but the municipality had decided to start breaching the berm at a much higher level, without taking steps to protect the houses affected by this decision.

The issue which occupied the least amount of time by the SCA was the contentious question of whether a substantive legitimate expectation is competent in our law. Mr Abbott argued that he had a legitimate expectation that the practice of breaching the berm would only be departed from if reasonable steps were taken by the municipality to protect his house from flooding.

The SCA observed that Mr Abbott's reliance on the doctrine of legitimate expectation was aimed at substantive relief, namely an order directing the municipality to take steps to prevent his house from flooding. However, it stated that the doctrine of substantive legitimate expectation has not yet been adopted as part of our law and our Courts have only applied it in the procedural sense.

Even assuming substantive protection of a legitimate expectation was found to be recognised, Mr Abbott in this instance had failed to lay the factual basis for his claim of a legitimate expectation for the municipality to take steps to prevent his house from flooding. The inquiry for determining the existence of a legitimate expectation is largely fact sensitive, with a focus on objective facts giving rise to the expectation.[7]

Therefore, until such time as our Courts are faced with a more appropriate factual scenario, it appears as though the legitimate expectation doctrine will remain purely procedural in its scope, since our Courts are disinclined to extend the doctrine so as to allow a claim to compel substantive compliance with the expectation.