The Principle of Legitimate Expectation in Administrative Law: A Namibian Perspective.

Gaeb, KN & Neemwatya, JK

Abstract

Most legal systems are currently facing many administrative law challenges

because of the growth of administrative power. The range of tasks performed by the

administrators has increased, so has the potential for arbitrary or unfair action as

regards the individual.1 Therefore, the argument stressing the importance of keeping

administrative authorities within their perimeter is transformed in the administrative

context into a claim of practicing different doctrines that debar an administrator from

turning out to be an irrational or arbitrary authority. The doctrine of legitimate

expectation has appeared as a new tool to prevent such arbitrariness or misuses. It is

the ‘latest recruit’ to a long list of concepts fashioned especially by the Western courts

for the review of administrative actions.2

In Namibia, it is true that there is no general Statute like Administrative Justice

Act laying down the minimum procedure which administrative authorities must follow

while exercising decision making power. Nonetheless the Court has always insisted

that administrative authorities must follow a minimum standard of fair procedure

(ensuring legitimate interest of individual).3 This minimum procedure refers to the

concept of natural justice which ultimately protects and ensures legitimate

expectation.4 Focusing on this aspect, this paper examines an introduction of the

* KN Gaeb & JK Neemwatya Diploma: Paralegal Studies Law (University of Namibia) Student Research Assistants; Prof. Mundia (Faculty of Law). 1 Thomas R Legitimate Expectations and Proportionality in Administrative Law (2000) p.1. 2 Takwani C. K Lectures on Administrative Law (2006) p. 278. 3 Waterberg Big Hunting Lodge and Another v The Minister of Environment and Tourism Case No. SA 13/2004. The Court stated as follows at page 20: “The ratio of this “doctrine of legitimate expectation” is consistent with the thinking and principles contained in Article 18 of the Namibian Constitution. The said doctrine, as well as Article 18, are based on reason and justice in the exercise of administrative discretion. The doctrine was overtaken by the later incorporation of Article 18 in the Namibian Constitution. Nevertheless the doctrine can serve a useful purpose in supplying some specifics to the broad and general norms set out in Article 18 and be used as a tool for the implementation of Article 18. As such it should be applied by our Courts in conjunction with Article 18.” See also Chairperson of the Immigration Selection Board v Frank and Another 2001 NR 1075 SC: For the relationship between the doctrine of legitimate expectation and Article 18. 4 Article 18 of the Namibian Constitution Act 1 of 1990. See also Md. Harun Reza Scope of legitimate expectation doctrine (2011).

doctrine, its scope, and its application as a check against arbitrary decisions of the

administrator, furthermore, how this doctrine has been integrated into Namibian case

law with reference to the setting of Namibia's constitutional-administrative law

dispensation.

Description and Scope of the Doctrine

The doctrine of legitimate Expectation is meant to provide aid to persons when

they are not able to substantiate their claims on the grounds provided by law. The

impact of this doctrine, at least in its traditional form, is that if an Administrative

Decision Maker makes a promise or gives an undertaking to exercise power in a

particular way, instantaneously, until that promise or undertaking is formally rescinded

or achieved, those affected by that exercise of the power have a legitimate,

enforceable, expectation that it will be exercised in accordance with the promise or

undertaking.5

The Supreme Court of India had an opportunity of establishing the meaning

and scope of the doctrine in Union of India v Hindustan Development Corp.6 In

explaining the meaning and validity of the doctrine upon it arising, the Court held that:

Time is a threefold present: the present as we experience it, the past as a

present memory and the future as a present expectation. For legal purposes,

the expectation cannot be the same as anticipation. It is different from a wish,

a desire or hope nor can it amount to a claim or demand on the ground of a

right. However earnest and sincere a wish, a desire or a hope maybe and

however confidently one may look to them to be fulfilled…the legitimacy of an

expectation can be inferred inter alia, if it is founded on the sanction of law or

custom or an established procedure followed in a natural and regular

sequence. Such expectation should be justifiably legitimate and protectable.7

Riggs submits that:

….the legitimate expectation doctrine has become a rationale for granting

judicial review of administrative decisions in circumstances where the applicant

had good reason to anticipate (i.e. a legitimate expectation) that the decision

would be favourable or at least that he would be properly consulted before the

adverse decision was made.8

5 Scott, D. & Felix, A. (1997). Principles of Administrative Law. London: Cavendish Publishing Ltd, p. 127. 6 (1993) 3 SCC 499. 7 Ibid. 8 Riggs, R. E. (1988). Legitimate Expectations and Procedural Fairness in English Law. American Journal on Comparative Law 395, p. 403.

Allan argues that the doctrine is simply an instrument for responding to

incidents of unfairness, hence there is no point in further delimiting it according to

some additional principle.9 This must be incorrect, for certainly situations of unfairness

will arise where the doctrine is entirely inapt, and where no expectation will be capable

of being identified. [Emphases original]

Legitimate expectation concerns itself with interests which by themselves would

not invite legal protection. Moules calls this the “special significance” of the concept:

rather than the nature of the interest attracting the application of the rules of natural

justice it is the “legitimate expectation arising out of the conduct of the decision-maker

which provides the basis of the protection”.10 This uniqueness of legitimate

expectations can be seen in the classic case of Ng Yuen Shiu.11 The applicant’s status

as an illegal immigrant meant that he had no free-standing legal right to challenge the

refusal of the Hong Kong authorities to grant him a hearing; only because of a prior

Government assurance that illegal immigrants would have such a hearing was the

Court able to intervene, thereby protecting his legitimate expectation. As Lord Fraser

stated:

The doctrine is capable of including expectations which go beyond enforceable

legal rights.12

The point being made here is that the doctrine has an extraordinary and distinct

role within administrative law. In contrast to other situations where, for instance,

fairness and natural justice are demanded by the very nature of the thing being sought,

the doctrine is also able to intervene where interests have crystallised into protectable

rights by virtue of some action of the decision-maker. This argument lies at the core of

this paper-the role of the doctrine is narrow and specific, unlike the broad principles of

fairness and abuse of power.

9 Allan, T. R. S. (1994). Law, Liberty and Justice: The Legal Foundations of British Constitutionalism. Oxford: Clarendon Press, p. 197-204. At p. 198 Allan argues for restricting the phrase “Legitimate Expectation” to cases where the court has decided to fully vindicate an expectation; this use as a conclusory label would be the extent of its role. Yet conceptually it would remain simply an instrument of fairness. 10 Elias, P. (1988). “Legitimate Expectation and Judicial Review”. In Jowell J & Oliver D. (Eds). New Directions in Judicial Review. London: Stevens, p. 41. 11 Att Gen of Hong Kong v Ng Yuen Shiu 1983 (2) A.C. 629. 12 Ibid at p. 636.

Historical development of the Doctrine of Legitimate Expectation

Classification of acts into quasi-judicial administrative acts and pure

administrative acts has been rooted in unfairness and abuse of administrative powers

by administrative authorities. According to this grouping, the rules of natural justice

were only applied in respect of quasi-judicial administrative acts.13 This has not only

granted administrators a green light to abuse their powers but also ignored an

individual’s right to a hearing where no legal right has been acquired.14 This has thus

militated against the rule of fairness as it excludes an individual’s legitimate

expectations. Consequently, the Appellate Division in Administrator, Transvaal v

Traub,15 adopted the doctrine of legitimate expectations to guard against abuse of

discretionary powers by those with authorities to exercise it. However, prior to the

Traub case, the doctrine was somehow raised in several cases though it was not

successful. Worth of noting of those cases is the matter of Castel NO v Metal and

Allied Workers Union, the appellate Division noted that:

Even if the "legitimate expectation" approach were to be adopted, there is no

room for its application here . . . nothing had happened before the application

for authority was submitted and nothing happened thereafter which could have

caused the applicant to entertain such an expectation . . . I am by no means

sure that this case would in England be classified as a "legitimate expectation"

case.16

The holding of the court in Castel No case then served as guidelines for a

successful claim for a legitimate expectation not only in the Traub17 case that was

decided a year later, but for any legitimate expectation case that may arise today and

tomorrow. Therefore, it could be argued that the doctrine of legitimate expectation had

been recognised in law in Roman-Dutch law in the Castel No case. It would appear

that the appellant only failed on the question of facts.18

13 Pretoria North Town Council v Ai Electrical Ice Cream Factory (Pty) Ltd 19533 SA 1 (A) 11AC); South African Defence and Aid Fund v Minister of Justice 1967 1 SA 263 (A) 278C-D. See also Wiechers, M. (1985). Administrative Law. Cape Town: Juta & Co, Ltd, pp136 & 180. 14 Oberholzer v Padraad van Outjo 19744 SA 870 (A) 875 at -876B; Baxter (1984). Administrative Law. Durban: Butterwoths, p.573. 15 Administrator Transvaal v Traub 1989 4 SA 731 (A). 16 Castel NO v Metal and Allied Workers Union 1987 4 SA 731 (T). 17 Administrator Transvaal v Traub 1989 4 SA 731 (A). 18 Castel NO v Metal and Allied Workers Union 1987 4 SA 731 (T).

Birth of the Doctrine into Namibian Administrative Law

The doctrine was first developed in the English jurisdiction in the case of

Schmidt v Secretary of State of Home Affairs.19 The Home Office, which administered

the Aliens Order, had a policy of according aliens studying at a ‘recognized educational

establishment’ a permit to live in Britain. The plaintiffs had been admitted to study at

the Hubberd College of Scientology and were given permits to live in the country for a

certain period of time. The Home Secretary, because of the concerns about

Scientology, announced that the college would no longer be considered a ‘recognized

educational establishment.’ When the plaintiff applied for the renewal of their permits,

they were refused. They then alleged that this constituted a denial of natural justice,

since they were not given a hearing before this decision was made.

Lord Denning emphasized that, since the plaintiffs were aliens, they were only

entitled to remain in the country “by licence of the Crown.” He held that the duty to

allow representations to be made “depends on whether [the plaintiffs] has some right

or interest, or, some legitimate expectation, of which it would not be fair to deprive him

without hearing what he has to say.”20

The doctrine was adopted into the Namibian jurisdiction via the South African

case of Administrator Transvaal v Traub21 and was hailed into Namibian law in West

Air Aviation (Pty) Ltd & Others v Namibia Airports Co Ltd & Another.22 For purposes

of this article, we find it vital to elaborate more on these two latter cases.

Administrator Transvaal v Traub.23

The respondents, all of whom were medical doctors, had applied to the Director

of Hospital Services to be appointed or reappointed to the position of Senior House

Officer at the Baragwanath Hospital of which the third appellant was the

Superintendent. In accordance with the existing practice, the applicants were

forwarded to the Head of the hospital departments concerned, who submitted them

with favourable recommendation to the Director, whose function it was, under

delegated powers to make such appointments.

19 (1969) 2 Ch. 149 (C.A). 20 Schmidt v Secretary of State for Home Affairs. (Ibid). 21 1989 (4) SA 731 (A). 22 2001 NR 256 (HC). 23 Administrator Transvaal v Traub 1989 (4) SA 731 (A).

The applications of each of the respondents were not approved. Moreover, it

was common cause that the applicants were rejected because the respondents

motivated by profound moral considerations and professional disquiet had signed an

incisively critical letter. The letter was thereafter published in the South African Medical

Journal. It severely criticized the Provincial Administrator, and drew attention to the

appalling and totally unacceptable conditions prevailing in the medical wards at

Baragwanath Hospital.

The Court had to decide whether the audi principle only applied to ‘existing

rights’, or whether indeed the impact was wider than just consideration of existing

rights24 because in this case the respondents were not yet vested with ‘existing rights.’

The Court, after tracing the genesis and development of the concept of legitimate

expectation in English law found that the respondents and the rest of the applicants

had expectations owing to the existing practice that fell short of enforceable rights that

required protection.25 The learned Judge went on to observe that in both Australia and

New Zealand the concept of legitimate expectation had been employed by the courts

in the context of judicial review of administrative action.

In this judgment, the Chief Justice accepted that the doctrine of legitimate

expectation should be incorporated into the South African jurisdiction. The Court

therefore found that the applicants had legitimate expectations, once their applications

for the posts of Senior House Officers had been recommended by the departmental

head. The director’s approval of the appointment would therefore follow as a matter of

course. If the director intended some change, he or she should give them a fair hearing

as each particular case required.26

The Chief Justice further recognised that a legitimate expectation might arise

in at least two instances: firstly, where a person enjoys an expectation of a privilege

or a benefit of which it would not be fair to deprive him or her without a fair hearing,

and secondly, in circumstances where the previous conduct of an official has given

rise to an expectation that a particular procedure will be followed before a decision is

made.27

24 Ibid, p. 747 C-D. 25 Ibid, p. 744 D-E. 26 Ibid, p. 761H-762D. 27 Ibid, p. 758D-F.

West Air Aviation (Pty) Ltd & Others v Namibia Airports & Another.28

The respondent sought to enhance both airport security and ramp safety. To

achieve this it decided to revise its terms and conditions and policy without informing

the applicants. Subsequently, it disconnected or relieved the applicants of its duties

and services to do ground handling because it thought West air Aviation was

compromising airport security and ramp safety. It appointed another company to take

over the services of ground handling.

The applicants then contended that it was an established part of their respective

businesses to carry on ground handling services, as such they had a legitimate

expectation as in the case of the first respondent that they would be permitted to

continue what was an established regular practice. In this regard they further

contended that there was an obligation on the first respondent to act fairly towards the

applicants when decided or revising its conditions and policy. Respectively the

applicants submitted that they were at least entitled to an opportunity to make

representations before the conditions and the policy could be changed, they therefore

sought an order that the first respondent’s decision should be reviewed and set aside.

Hannah, J the then Judge of the High Court, cited with approval the decision of

Administrator Transvaal v Traub and highlighted that legitimate expectation arise

despite a person claiming some benefit or privilege has no legal right to it, as a matter

of private law. He nonetheless may have a legitimate expectation of receiving the

benefit or privilege. The Court usually protects legitimate expectation by judicial review

as a matter of public law. In addition, legitimate or reasonable expectation was found

to emanate either from an express promise given on behalf of a public authority or

from the existence of a regular practice which the claimant can reasonably expect to

continue.

He further extracted a few extracts of particular significance as follows:

…the particular manifestation of the duty to act fairly which is presently involved

is that of the recent evolution of our administrative law which may enable an

aggrieved party to evoke judicial review if he show that he had a ‘legitimate

expectation’….the principle may now said to be firmly entrenched in this

branch of the law. As the case show, the practice is closely connected with

‘a right to be heard’…29 (emphasis added).

28 2001 NR 256 (HC). 29 West Air Aviation (Pty) Ltd v Namibia Airport Co Ltd 2001 NR 256 at 263-264.

There has been a number of other Namibian decisions that have followed this

ruling. In so doing they likewise have also highlighted that legitimate expectation is

closely linked to the right to be heard, thus anticipating procedural fairness. This was

the case in Open Learning Group of Namibia Finance v Permanent Secretary of the

Ministry of Finance & Others,30 were Damaseb JP had the following to say regarding

legitimate expectation:

Where a public authority so acts as to create or bestow a benefit or concession

in circumstances where it is under no statutory duty to do so, those enjoying

such benefit acquires a legitimate expectation to be heard before any

action adverse to the enjoyment of that benefit is taken. Put simply, the

public authority granting the benefit must respect the dictates of the

Constitution; it must act fairly and reasonably.31

Damaseb JP justifies his assertion in providing that:

The reason is simple: relying on such benefit the grantee may organise his or

her affairs in reliance on such benefit or concession – affairs which may be

negatively affected by a summary withdrawal of the benefit or concession.32

In applying this principle to the facts of the case, Damaseb JP held that:

The applicant, relying on the benefit of the deduction code, organised its affairs

to its financial advantage and that a potential disruption would ensue in the

wake of its withdrawal is amply demonstrated on the papers. As clear from the

agreement, the applicant is also required to invest resources in a ‘social

upliftment programme’. It therefore assumed a financial risk entering into the

agreement. The applicant therefore had a legitimate expectation to be heard,

assuming the withdrawal of the code constitutes administrative action.33

Application of Substantive Legitimate Expectation through implication in the

Namibian Context

In the case of Minister of Health and Social Services v Lisse,34 the plaintiff, a

specialist obstetrician and gynaecologist was previously employed by the defendant

as a medical officer from 1989 to 2003, and later as a specialist. He resigned in 2003

and commenced his private practice in January 2004. He then applied to the

defendant during 2004 for permission to engage in the treatment of patients and to

perform medical procedures at State hospitals under the jurisdiction of the defendant

30 Unreported judgment of the Namibian High Court, Case No.: (P) A96/2005. Judgment delivered on 10 January 2006. 31 At page 38, para 94. 32 Ibid. 33 Ibid. 34 CASE NO. SA 23/2004

in terms of section 17 of the Hospitals and Health Facilities Act, 36 of 1994 (“the Act”).

On 5 April 2004, the defendant refused the application of the plaintiff. However

between January and April 2004, before his application was declined, he consulted

with state patients, particularly those on the Public Service Employer Medical Aid

Scheme (“PSEMAS”) in anticipation of being granted leave to engage in the treatment

of patients and to perform medical procedures at State Hospitals.

Issues:

- The reasons for the Minister’s decision were only supplied subsequent to her

final decision and only when requested to do so by Dr Lisse and/or his legal

representatives.

- Minister relied on complaints from staff, fellow doctors and other people but

never presented an opportunity for Dr Lisse to refute such statements or address them

- The minister in making his decision failed to consult senior staff at the hospital

The Court Held that the Minister did not afford Dr Lisse a proper hearing before

decision was taken; she failed to appreciate Dr Lisse right to his legitimate expectation

to a fair procedure, therefore the decision taken was unfair, unreasonable and in

conflict with Article 18. The Courts further decided not to send the application back to

be reviewed by the Minister as the same decision would be anticipated and therefore

be unjust. The court ordered the Minister to issue the acquired authority to practise.

So it is seen here that the core of substantive legitimate expectation is then realised.

The promise/practice by the public authority which is in source of the applicant’s

procedural rights and in a sense protection can be seen as substantive because the

applicant being Dr Lisse receives what he was led to expect. It is through implication

that substantive legitimate expectation was applied, on the basis of the judgement

granted.

In re: Van Rooyen v University of Namibia35

The matter was based on the fact that Van Rooyen was awarded Full Professor

rate and that the Vice Chancellor later send him a letter stating that there was an error

done on awarding him such Full Professorship which was signed by the Pro-Vice

Chancellor Hangula on behalf of the Vice Chancellor Peter Katjavivi. The VC stated

35 Van Rooyen v University of Namibia 2004 NR 150 (LC)

that it should have been that of Associate Professor. Van Rooyen stated that if he is

deprived of his Full Professor title which he had been using and which the Dean Prof

Du Pisanni his employee congratulated him about will affect him financially. The court

under the Judgement of Damaseb JP stated that the University’s decision to alter Van

Rooyen status from full professor to that of associate professor constitutes a unilateral

alteration of the Van Rooyen conditions of employment. The University is therefore

ordered to restore the status quo ante with immediate effect.

This meant that the benefit which was constituted upon Van Rooyen which is a

substantive legitimate expectation as Van Rooyen showed that profession of such

level from on tier to another upgrading tow positions at once is a practice which has

been taking form for a long period of time such as a lecture to being promoted to

Associate Professor.

In the case of Witvlei Meat (Pty) Ltd v The Cabinet of the Republic of Namibia,36

the courts had an application to grant relief sought by the applicant. The applicant had

brought forth one of the grounds of Substantive legitimate expectation. The court held

that it would not need to focus or consider on this concept as there were others of

more importance/consideration in the matter. We can see here that the courts are not

foreign to the doctrine of substantive legitimate expectation and could therefore be

expressly in applied in the courts.

Article 18 does not restrict the duty of Administrative bodies or administrative

officials to act fairly and reasonably only in regard to procedure. It must be inferred

that this requirement also applies to the substance of the decision. This inference is

strengthened by the last part of the article, which provides that persons aggrieved by

the exercise of such acts and decisions, shall have the right to seek redress before a

competent Court or Tribunal".37

36 (A 07-2014) [2014] NAHCMD 115 (31 March 2014) (1) 37 This view has been laid down in my decision in the High Court in Aonin Fishing (Pty) Ltd v Minister of Fisheries and Marine Resources 1998 NR 147 HC and confirmed by this Court in: The Chairman of the Immigration Selection Board v Frank, 2001 NR 107 SC 109E-110B; 116F-121G; 170F-176I Government of the Republic of Namibia v Sikunda 2002 NR 2003 SC at 226G-229F. See also High Court decision 2001 NR 181. Mostert v Minister of Justice, 2003 NR 11 at 22J-28H. Cronje v Municipal Council of Mariental, 2004 (4) NLLP 129 at 175-182.

What article 18 of the Namibian Constitution does is that it does not confine

itself to "procedurally fair administrative action", but provided generally that –

"Administrative bodies and administrative officials shall act fairly and reasonably …

and person aggrieved by the exercise of such acts and decisions, shall have the right

to seek redress before a competent Court".

The general principle of a duty to act fairly and reasonably, supplements the

common law and any relevant statute law, but obviously any common law or statute

law in conflict with this provision, will be unconstitutional.

Article 18 does not talk of any person’s legitimate expectation.38 Thus, its

purpose could not be fully attained with invoking the doctrine of legitimate expectation.

One of the rights provided in Article 18 is the right to a hearing. This is the essence of

procedural legitimate expectation which is fairly part of our law. In Frank case,39 the

Supreme court noted that the doctrine of legitimate expectation may entitles a person

to a right of hearing even where such person would otherwise not have acquired such

right. Therefore legitimate expectation may, on itself, amounts to another right though

short of a legal right.

As alluded to earlier, certain requirements must be met. In Uffindell case,40

the court held that a legitimate expectation only arises where there was an

established practice of consultation, or where a promise or representation has

been made that consultation will be made. The court held that the respondent

failed to adduce evidence of the practice of consultation.

Conclusion

The developed concept of legitimate expectation has gained sufficient

importance in Administrative law.41 The doctrine has been developed to check and

to control the exercise of powers by the administrative authorities and thereby it

aims at the main aspect of this branch of public law. The substance of the doctrine

is implied commitments without hampering express policies. The doctrine is

Bel Porto School Governing Body & Others v Premier Western Cape & Another 2002 (3) SA 265 CC at 291C –295H; 300C-316E. 38 ibid. 39 Chairperson of the Immigration Selection Board v Frank and Another 2001 NR 107 (SCA). 40 Arthur Fredrick Uffindell t/a Aloe Hunting Safaris v Government of Namibia And 4 Others case NO. (P) A. 141/2000. 41 Massey, I. P. (2001). Administrative Law. Eastern Book Company, 5th Edn, p. 293.

invoked to enforce regularity, predictability and certainty in government dealings.

It is the tool of protecting individual citizens against the administrative actions

subject to the satisfaction of the court as to the existence of the factors necessary

to justify the expectation as legitimate. For this reason, the court should exercise

self-restraint and restrict the claim of denial of legitimate expectation to the legal

limitations.

The utilisation of the doctrine of legitimate expectations is two-fold. On the

one hand, it assists in determining the circumstances in which a duty to act fairly

arises. A public body that, through its conduct, has created a legitimate

expectation on the part of the person who is subject to its decision-making

powers, must act fairly towards that person. Therefore, a person who has a

legitimate expectation has a stronger claim to fair treatment than a person whose

interests may be affected by an administrative decision, but who does not have

any legitimate expectation. On the other hand, the doctrine assists in defining the

content of the duty to act fairly. A person who has a legitimate expectation is

entitled to a higher degree of fairness than a person who can claim only that the

exercise of statutory decision-making powers affects his interests adversely.

Accordingly, the application of the doctrine by the Courts is not an end. The

doctrine is a tool to be used in determining whether the decision-maker owes a

duty of fairness to the person concerned and what that duty entails.42

The doctrine of legitimate expectation in Namibia, is still in an evolutionary

stage; but one thing is certain that it managed to have its position entrenched in

the same line with other contemporary world practicing this doctrine successfully.

But this is not the end. To continue with this success, the judges are to play the

lead role by being well-resourced with different facets of this doctrine. As there

are no fixed rules to express this principle, the judges should be more careful in

deciding a claim based on legitimate expectation so that nobody can use the

inherent uncertainty of this principle. At the same time, a constant comparative

analysis with other countries and to import new ideas from them will be of use for

the smooth development of legitimate expectations in Namibian law.

42 Pretorius, D. M. (2000). “Ten Years After Traub”. The South African Law Journal, vol. 117, issue. 3: p, 547.