These are notes in administrative law part 2.1

1. •evolved as a natural justice principle
•meant to expand the meaning of right to be
heard since its ultimate goal is to attack the
effect of a hearing or failure to conduct a
hearing
• an expectation hinges on an interest or
right that one possesses
Legitimate expectation-
EVOLUTION

2. S. Hofisi
 University of Zimbabwe, 2019
 ADMINISTRATIVE LAW
 HPOS/HAD 2.1

3. Understanding legitimate expectation
 Legitimate expectation relates to the ethics of
fairness and reasonableness.
 Remember fairness and reasonableness may
be understood from public values, which
values usually depend on what each society
naturally considers to be fair and reasonable.
 This is usually applicable where a person has
an expectation in retaining a long standing
practice or in the fulfilment of what was
promised (See Mutangadura v Rwodzi, 2019).

4. What legitimate expectation
entails?
 The South African case of Administrator,
Transvaal & Ors v Traub 1989 showed that the
legitimate expectation principle, instead of
insisting that an individual be affected in his
liberty, property or existing rights before he
may be heard in his own interest, lays down
that an individual who can reasonably expect
to acquire or retain some substantive benefit,
advantage or privilege must be permitted a
hearing before a decision affecting him is
taken (see Feltoe 2012).
 We are citing Feltoe as authoritative text.
Traub case is case law authority..

5. What legitimate expectation entails?
 In Zimbabwe, For instance, Gubbay CJ as he
then was, remarked in the case of Health
Professions Council v McGowan 1994 that: “...the
legitimate expectation doctrine, as enunciated in
Traub, simply extended the principle of natural
justice beyond the established concept that a
person was not entitled to a hearing unless he
could show that some existing right of his had
been infringed by the quasi-judicial body…
Fairness is the overriding factor in deciding
whether a person may claim a legitimate
entitlement to be heard…”.

6. What legitimate expectation entails?
The Traub and Mcgown case show that:
 Fairness is not only linked to rights in their generic
sense
 fairness include what one expects from another
person before a decision or action that adversely
affects him can be taken
 Fairness includes the respect for one`s interest in
a given situation. Interest includes broad benefits
such as seniority, duration of ties, years of
experience and so on.

7. How legitimate expectation is
created?
 Fairness includes the respect for one`s broad
benefits such as duration of ties.
 Simple expectations may lead to legitimate
expectations that are linked to basic
rights/interests.
 This is articulated in the case of Danai v Women’s
University in Africa(WUA) 2015 where unilateral
withdrawal of a student`s candidature amounted
to a breach of the legitimate expectation since she
had entered into a basic contract with the
university. The contractual rights made her an
interested party who expected that she be heard
before the university could unilaterally dismiss
her after paying part of fees and passing
assignments in the distinction range .

8. The interests and Rights in the
Danai case?
 The student, had applied for a postgraduate
course which had minimum requirements she
didn’t meet.
 She received an offer letter, which required her to
delete the inapplicable I accept/I do not accept.
 She accepted the offer and a basic contract (offer
and acceptance) was agreed into. The essential
elements of a contract usually are: consensus
ad idem/meeting of the minds; animus
contrahendi/ the intention to contract; offer
and acceptance; terms and conditions

9. The interests and Rights in the Danai
case?
 The student attended classes, creating an expectation
and interest that:
 She would continue to attend classes until she
finishes he studies (expectation).
 She wrote and ironically passed her assignments with
very high marks. She was writing the assignments as
part of her coursework mark for the postgraduate
degree (interests and expectation)
 She also went through the biometric fingerprinting
process, which is required of every student of WUA
(expectation)
 She also made a part payment of her fees, and was
given a payment proposal by the University Finance
department (Contract)

10. The interests and Rights in the Danai
case?
The student, just like any other student, prepared
for the examinations. To her surprise, she was
referred to the academic registrar who simply told
her that:
 She had not been improperly admitted because
she did not meet degree requirements
(expectation, interest, contract).
 She then appealed to the university authorities on
9 June 2015 so that she could be allowed to write
the examinations (contract, interests and
expectation of an answer)
 The examinations proceeded but she only
received a response on the 31st of July 2015,
some 21 days after her prejudice.

11. How the applicant approached the
High court?
 Utilised section 3 and 4 of AJA and section 68
and 69 of the Constitution of Zimbabwe, 2013.
 Basically stated that the decision to withdraw
her candidature was taken without affording
her an opportunity to be heard (audi partem)
or make representations, that she was not
given prompt and written reasons for that
administrative conduct and that she had a
legitimate expectation to be allowed to sit for
her examinations and to continue her studies
after being admitted the way she was before
an adverse decision could be taken against
her.

12. Why taking WUA under AJA?
 It was an administrative authority under section 2
of AJA
 It offered services of a public nature although it is
a private university.
 It had taken an administrative action that fits
under the definitions section in AJA
 The administrative action adversely affected a
student who had accepted an offer letter,
registered biometrically, made part payment of
fees, passed assignments in the distinction range
and had her candidature unilaterally withdrawn on
the eve of the examinations.

13. What the Court had to say?
 She was being, at all times, treated as a student of the
university thereby raising in her the expectation that she
would not only continue with her programme but also sit for
her examinations
 Basically stated that the decision to withdraw her
candidature was taken without affording her an opportunity
to be heard or make representations, that she was not given
prompt and written reasons for that administrative conduct
and that she had a legitimate expectation to be allowed to sit
for her examinations and to continue her studies after being
admitted the way she was.
 She was withdrawn on the eve of examinations without any
formal reasons. When she sought audience, the University
Senate went on to deliberate on her case in breach of the
audi alteram partem rule, and to arrive at a decision adverse
to her notwithstanding.

14. Held in the final that:
 Surely it cannot possibly be fair or just to lead a student
down the garden path, to admit her into university and take
her fees, to allow her into lecture rooms and administer and
mark assignments. When the time comes to reap what she
sow in examinations, to then prevent her from sitting for
those examinations and kick her out.
 It is not only unjust and brazen in its effect, it is also a black
spot in civilized social order. If the first Respondent
(University) had made a mistake in admitting the applicant in
the first place, it was too late at that stage to recant that
decision. In fact it was easier to accept the error, swallow it
and move on. Doing otherwise unduly upset the social order
to the prejudice of the applicant.
 In the Respondents were ordered to reinstate the applicant
and allow her to write the examinations.

15. Mutangadura v Rwodzi 2019
 A chief law officer (CLA) who headed a special
unit of the National Prosecuting Authority was
transferred from Harare (Zimbabwe’s capital city)
to a growth point in Guruve.
 The CLA challenged the decision at the High
Court.
 The legitimate expectation principle was upheld
since a letter had caused the CLA to be
transferred without affording him the right to be
heard.
 Even though the conditions of service were not
changed, the court remarked that the move was
akin to transferring a university professor of
history to a lower school to teach the same
subject, see course outline for more on this case.

16. The Mushoriwa judgment (2013):
 Right to water.
 City council monopolises the allocation of water
in Harare
 Cannot unilaterally deprive residents of water
without following due process.
 Just like in the Danai case, contractual rights
create a legitimate expectation. The rights in the
Mushoriwa case related to getting water for a
service. The Applicant was vehemently disputing
the services which Council purpoted to have
rendered.

17. The Council/ Respondent`s
arguments were:
 Disconnections are authorised by law.
 Section 8 of Water By-Laws 164/1913 provides that Council
may, by giving 24 hours notice, in writing without
compensation and without prejudicing its right to obtain
payment for water supply to the consumer, discontinue
supplies to the consumer
 a) if he shall have failed to pay any sum which in the opinion
of the Council is due under these conditions or the water
by-law
 Section 69 (2) (e) (i) of schedule 3 of the Urban Councils Act
(Chapter 29:15) provides that
 2) Without derogation to the generality of subparagraph (i),
by-laws relating to matters referred to in that subparagraph
may contain provision for all or any of the following;
 B) cutting of the supply of water, after not less than twenty
four hours notice on account of;
 i) failure to pay any charges which are due

18. Justification of Respondent`s
arguments may be:
 Disconnections are authorised by law.
 Section 8 of Water By-Laws 164/1913 is not ultra vires the
provisions of section 69 (2) (e) (i) of schedule 3 of the Urban
Councils Act (Chapter 29:15);
 Council does give notice on the bill before disconnecting an
individual who fail to pay any charges which are due
 Levies are a form of tax which benefit even the applicant
and are made in terms of section 271 (2) of the Constitution
 Council does not need a court order under the by-laws
 The by-laws are valid
 Disconnections are the only practical way council can
collect revenue to provide essential services such as water.
 Right to water is limited under section 86 (3) of the
Constitution

19. International law
 Zimbabwe is a state party to international law
which protect the right to water. Article 11 and 12
of the International Covenant on Economic, Social
and Cultural Rights (ICESCR) which protect the
right to water.
 General Comment 15 (2002) of the United Nations
(UN) Committee on ESCR establishes the right to
water as indispensible for leading a life of dignity.
It establishes that every person must have access
to water supply that is sufficient and continuous
for personal and domestic use. Water should also
be affordable to all, and where individuals cannot
afford to pay for the water supply, the State must
ensure that a bare minimum water supply is
provided free of charge. The means of the person
to be disconnected should also be taken into
consideration.

20. National law
 The right to water is justiciable under the Constitution
 It is not a right to be instantly realised but the State
has a duty to ensure that it is progressively realised.
This cannot be done when Council is allowed to resort
to self-help
 Section 34, 326 and 327 make international part of our
law. Council is bound by those international laws and
must further the spirit, purport and object of the
Constitution.
 The By-laws and Urban Councils Act provisions are
ultra vires the provisions of section 77 of the
Constitution. That Council appealed against the High
Court decision that declared the By-Laws invalid does
not make the by-laws constitutional. It only makes
them valid pending the final determination on their
validity

21. National law
 Provision of water services is contractual in nature.
The council cannot unilaterally terminate a contract
and not expect the affected party not to approach the
court for redress. Contract have corresponding rights
and obligations.
 Council administers decisions and actions relating to
water basing on section 3 of AJA and section 68 of the
Constitution. It is not exempted from acting lawfully,
reasonably, and fairly in a substantive and
procedurally fair manner.
 The disconnections interfere with other rights, such as
property rights. This was one of Mushoriwa`s central
arguments. Council has been confiscating water taps
and this seriously impeaches affected persons`
property rights
 The bills are based on council estimate. This is
unreasonable in a constitutional supremacy such as

22. National law
 The by-laws are outdated. The by-laws were made
in the early years of colonial administration and
are no longer useful in a democratic society such
as Zimbabwe.
 24 hour notice is not reasonable and justifiable in
a democratic society. This is particularly so when
one considers the fact that the State has
obligations under both international and
constitutional law. The constitution is a mirror of
the nation`s soul and should be respected by
citizens, state functionaries and institutions.
 The council notices clearly show the need for
council to follow due process of the law. They
give notice as a basis for the court process and
unilateral disconnections violate legal
procedures.

23. Appeal by Council
 The High court had ruled that council’s action
to disconnect Mushoriwa’s water supply was
not lawful. The bylaws used were also invalid
for want of compliance with the constitution.
 Council appealed and the Supreme Court
upheld the appeal simply on the basis that it
would have arrived at a different decision than
that taken by the High Court. Unfortunately
the judgment did not ventilate the reasons
and it remained to be seen whether a
constitutional application would be made by
Mushoriwa challenging the Supreme Court’s
finding.

24. Implications of the Supreme court
Decision in Harare City Council
appeal
 Water disconnections are lawful
 Council can disconnect water supply unilaterally
 Progressive realisation of the right to water and
food has been interpreted in piecemeal fashion
 There are no cogent reasons to allow critics to
understand why the appeal was allowed.
 Soft law considerations in international
instruments such as General Comment 15 are still
to be applied in light if section 46 of the
Constitution.
 Judicial restraint/ Innovative judicial avoidance is
fast taking its tow on interpretation of
constitutional rights.

25. Conclusion
 The legitimate expectation test was first adopted in
South Africa in the case of Langeni & Ors v Minister
of Health & Welfare 1988 (4) SA 93 (W). It was
however clearly enunciated in the South African
Appellate decision of Administrator, Transvaal &
Ors v Traub 1989 (4) SA 731 (A) where it was held in
relation to legitimate expectation that “…an
individual who can reasonably expect to acquire
or retain some substantive benefit, advantage or
privilege must be permitted a hearing before a
decision affecting him is taken. The proper
question to ask in any given case is therefore
whether the person complaining is entitled to
expect, in accordance with ordinary standards of
fairness, that the rules of natural justice will be
applied. [Thus] the doctrine may be applied even
in the absence of a pre-existing right. (Emphasis
added).”

26. Conclusion
 The Zimbabwean Supreme Court adopted the South African
approach in the Traub case as seen in cases such as PF-ZAPU v
Minister of Justice (2) 1985 (1) ZLR 305 (S) and Public Service
Commission v Tsomondo 1988 (1) ZLR 427 (S).
 In Metsola v Chairman, Public Service Commission & Anor 1989 (3)
ZLR 147 (S) at pp 155-156, the court said that the legitimate
expectation test is connected with the right to be heard and does
not constitute an additional ground for the application of the audi
alteram partem principle. The court said that in essence it means
no more than that the decision-maker must act fairly and apply the
principles of natural justice before reaching any decision that will
adversely affect the legitimate expectations of the aggrieved party.
 In Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772
(S), the court observed that the maxim audi alteram partem
expresses a flexible tenet of natural justice that has resounded
through the ages. The audi principle applies both where a person’s
existing rights are adversely affected and where a person has a
legitimate expectation that he will be heard before a decision is
taken that affects some substantive benefit, advantage or privilege
that he expects to acquire or retain and which it would be unfair to
deprive him of without first consulting with him.

27. Conclusion
 MANIFESTATION OF LEGITIMATE EXPECTATION
 1.) Where regular practice, established policy or undertaking
 In the case of Matake & Ors v Ministry of Local Govt & Ors
2007 (2) ZLR 96 (H) the judge set out in detail what is required
for a person to claim that he or she had a legitimate
expectation based on an express promise or the existence
of a regular practice.
 The requirements are as follows–
 (1) The representation underlying the expectation must be
clear, unambiguous and devoid of relevant qualification.
 (2) The expectation must be reasonable.
 (3) The representation must have been induced by the
decision-maker.
 (4) The representation must be one which it was competent
and lawful for the decision-maker to make without which
reliance cannot be legitimate.

28. Conclusion
 In Matake, Applicants were public servants employed at
teachers’ training college. Main task was to provide catering
& cleaning services at college. The Ministry sub-contracted
private companies to provide these services, thus rendering
applicants redundant & applicants retrenched. This led to
them requesting their Ministry to be allowed to purchase
govt houses in which they had been living for many years.
Nearly 2 years later their Ministry replied, saying that policy
was being formulated & sitting tenants would be advised. 18
months later, Ministry Secretary told them that their request
to purchase the houses had been rejected and they were
given 3 months’ notice to vacate. They however didn’t move
out & sought review of decision, - at the expiry of 3 month
period, obtained provisional order which stayed their
eviction.
 At hearing at which they applied for confirmation of
provisional order, sought an order compelling respondent to
sell houses to them. They claimed that the first letter gave
rise to a legitimate expectation that the houses would be
sold to them

29. Conclusion
 Court decided there was no basis for legitimate
expectation. No representation to applicants that houses
would be sold to them had been made by the ministry.
Further there was no clear, unambiguous & unqualified
representation. Nor were applicants’ expectations
reasonable. All the letter from ministry stated was that their
request would be considered, which could mean either a
favourable or an unfavourable outcome of the
consideration.
 2.) Where no regular practice, established policy or
undertaking
 In the case of Taylor v Minister of Higher Education & Anor
(1996). The court held that the application of the legitimate
expectation doctrine is Not confined to cases where
established practice to grant hearing. It was highlighted
it also applies in any circumstances where there is a
legitimate expectation that the person will be
consulted before the decision is taken.

30. Conclusion
 In Mutangadura v Rwodzi, 2019, LE must be
upheld even in situation where an authority labors
under the impression that it has powers to act in a
certain manner such as transferring a chief law
officer.
 The principle was linked to other principles such
as irrationality, legality and reasonableness.
 Essentially, you can link LE to other principles of
natural justice such as right to be heard and the
nemo judex doctrine OR ordinary principles such
as proportionality, ultra vires, legality, intra vires
and so on.

31. Conclusion
 In the Taylor case a senior lecturer at the Bulawayo Polytechnic
College had been laterally transferred from his post to a similar
post at the Harare Polytechnic College. The lecturer was not given
any opportunity to make representations about the transfer before
it was effected. He had tried unsuccessfully to obtain reasons for
this transfer.
 The court found that in the circumstance he had a legitimate
expectation that he would not be transferred without being heard
from first.
 The court however pointed out that this doesn’t apply every case
of transfer because in a busy Ministry it would be unworkable to
grant hearing to every single person wants to transfer and could
lead to substantial delays & extra work would adversely affect
operational efficiency. However in the case at hand a hearing
required taking into account age, seniority, responsibilities of job,
fact that the applicant would not occupy same prestigious position
in Harare as had in Bulawayo & fact that would suffer economic
loss as result of transfer.