THE DOCTRINE OF LEGITIMATE EXPECTATIONS: PROSPECTS AND PROBLEMS IN CONSTITUTIONAL LITIGATION IN SOUTH AFRICA

Extract

One of the outstanding features of the South African Constitution is the well-articulated concept of administrative justice. It is to be expected that a modern constitutional state with an enormous social reconstruction programme like that of post-apartheid South Africa must have a sophisticated mechanism for the maintenance of administrative justice. The immediate past experience of apartheid under which the administrative process was devoted to the victimization of a large section of the population has also meant that every constitutional means possible in the arduous task of social reconstruction must be deployed towards the declared objective of the evolution of a humane and just administrative process. It was therefore not surprising that the post-apartheid constitutions considered the availability of administrative justice for citizens as one of their foremost civil liberties. Under the common law, the concept of administrative justice is generally associated with the notion of natural justice. Recent developments, however, have tended to narrow the concept down to the idea of fairness. The most remarkable proof of this development is the emergence of the doctrine of legitimate expectations, under which the courts have been able to come to the aid of persons who would have in previous situations been unable to obtain redress in matters where the application of administrative discretion is of paramount importance.