The doctrine of substantive legitimate expectation: a missing piece of the puzzle in modern South African administrative law

Abstract

The doctrine of legitimate expectation is well-established in South African administrative law. The doctrine has two pillars: a procedural legitimate expectation focuses on the procedure that a public authority follows before deciding, and a substantive legitimate expectation focuses on the actual decision that a public authority makes. There is a paralysis within the judiciary when it comes to reflecting seriously upon whether substantive legitimate expectations should form part of South African law, perhaps influenced to some degree by judicial restraint. Against the backdrop of Administrator Transvaal v Traub 1989 (4) SA 731 (A), Meyer v Iscor Pension Fund 2003 (2) SA 715 (SCA) and obiter comments in Bel Porto School Governing Body v Premier, Western Cape 2002 (3) SA 265 (CC), the article takes transformative constitutionalism as its point of departure in advocating for the incorporation of substantive legitimate expectation into the evolving corpus of administrative law. This development is long overdue. The article discusses values such as constitutional supremacy, the rule of law, fairness, the separation of powers and administrative justice, and the institutions that support these values.