INTRODUCTION
The doctrine of legitimate expectation demands that a public authority respects and applies its stated position or sustained practice in exercising its powers. It is a principle of fairness in the exercise of public powers which is recognised and applied by the courts on the rationale that public authorities are bound by the impression they created which induced the public to act in a certain way. In enforcing legitimate expectation, courts usually consider the reasonableness of the expectation and the nature of the representation made by the public body that gave rise to the expectation.
Legitimate expectation has been categorised into procedural and substantive. Procedural legitimate expectation presumes the procedure that a public authority would follow in exercising its powers in certain circumstances based on its representations. Substantive legitimate expectation on the other hand, envisages the decision that the public authority would take under a circumstance.
In the South African case of Duncan v Minister of Environmental Affairs [2010] (6) SA 374 (SCA) at paragraph 15, the Court set out what needs to be proven for legitimate expectation to be enforced, namely:
- The representation inducing the expectation must be clear, unambiguous and devoid of any relevant qualifications;
- The expectation must have been induced by the decision maker;
- The expectation must be reasonable; and
- The representation must be one which is competent and lawful for the decision maker to make.