The Principle of Legitimate Expectation in Administrative Law: A Namibian Perspective (original) (raw)
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THE DOCTRINE OF LEGITIMATE EXPECTATIONS IN KENYAN ADMINISTRATIVE LAW
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Article 47 of the Constitution of Kenya makes the doctrine of legitimate expectations a constitutional issue rather than a creature of the common law applicable in Kenya. The implication of this fact needs a new understanding in light of its potential impact on how discretionary power by public and private entities may be exercised.
EXECUTIVES’ GUIDE ON APPLICATION OF THE DOCTRINE OF LEGITIMATE EXPECTATION AS A GROUND FOR JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS , 2020
Public authorities are to maintain assurance of their acts, thereby preserve the reasonable expectation of the people. Such assurance has given the natal to the doctrine of ‘Legitimate Expectation’. Therefore, the legitimate expectation of the individual towards the decisions of the public authorities has been engineered prior to the conduct of them which creates and enhances uniformity and certainty of their decisions. Accordingly, people have faith in Legal certainty as a basic tenant of the rule of law and they plan their lives and get the knowledge about the legal consequences of their actions. Further, good administration system requires to uphold its promises made by expression or practice and protect the justice in the case of violation of such legal right and liberty and interest of the people. Legitimate Expectation arises when administrative authorities exercising certain policies, practices, and exercising of its discretionary power. According to Wade & Frosty, aggravated parties have the right to seek legitimately expected benefits by placing trust in the promises of the official that were violated or denied. Therefore, it is unfair to dash or deny legitimate expectations of the aggrieved parties without granting them an opportunity of representation and to convey authority why desecration should be fulfilled their expectation. Therefore, public authorities and decision-makers must be aware to protect the legitimate expectations of the people as it is a mature tool to decide fair exercising of discretion power of the public authority at the court of law.
The Protection of Legitimate Expectations in Administrative Law: A Horizontal Perspective
Baltic Journal of Law & Politics, 2017
The term “protection of legitimate expectations” in administrative law traditionally draws our attention to vertical relationships between the State and an individual. In my text I propose a non-traditional approach to the issue of protection of legitimate expectations in administrative law. Instead of analysing the problem from the perspective of the relationship between the administrative body and the individual, I have attempted to tackle the problem from the perspective of entities involved in peer relationships. The subject of my analysis is the principle of good faith as the axiological foundation for the protection of legitimate expectations in administrative law. Next the article addresses the specific legal institutions that express the protection of legitimate expectations in horizontal perspective: prohibition to make assertions contradictory to prior position (estoppel), institutions that express the protection of legitimate expectations in administrative contracts, as w...
A FUTURE FOR THE DOCTRINE OF SUBSTANTIVE LEGITIMATE EXPECTATION?
Prior to KwaZulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu-Natal (KZN JLC) commentators and the courts were in agreement that "the way has been left open" for the development of the doctrine of substantive legitimate expectation in South African law, so that a court could, in the future, afford an expectant party’s substantive legitimate expectation (i.e. the expectation of a particular outcome) substantive – as opposed to mere procedural – protection. In KZN JLC the opportunity arose to develop a doctrine of substantive legitimate expectation, but the Constitutional Court declined to do so. Instead, a new legal mechanism was created to enforce a "unilateral publicly promulgated promise by government to pay". In this paper I briefly discuss the development of the doctrine of legitimate expectation in South African law, which left the way open for the Constitutional Court to develop a doctrine of substantive legitimate expectation in KZN JLC. I address the court’s refusal to develop the doctrine, and analyse the creative approach adopted in KZN JLC in respect of the enforcement of a unilateral and publicly promulgated promise by government to pay, from the perspective of whether this creative approach amounted to the invocation of the doctrine by another name. I then consider the implications of KZN JLC for the development of the doctrine of substantive legitimate expectation in future. Finally I discuss how the creation of a new legal mechanism to enforce publicly promulgated promises to pay is "subversive of PAJA and the scheme in s 33 of the Constitution".
A succinct definition of administrative action a prerequisite to secure just administrative action
University of Namibia Law Review, 2017
Article 40(k) of the Namibian Constitution defines administrative action explicitly as an executive power and not merely as an undefined public power as it was seen in terms of the common law that evolved under the Westminster Constitutions. The bill of rights subjects all legislation that regulates administrative action to judicial review to ensure that the essential content of the rights are not encroached upon. Article 18 of the Constitution further requires that administrative measures should be legal and also reasonable and fair. It is not possible, however, to secure administrative justice unless there is clarity about what exactly constitutes an administrative act and what the legal effect of an administrative act implies. In general, there is no dispute about the kind of measures that are regarded as administrative action. The difficulty is rather to find a succinct definition that captures the abstract elements of an administrative act. The tried and tested German definition is discussed against this background. The article attempts to facilitate a clear delineation of administrative action from other executive powers as well as powers of other state organs. In general, the Namibian courts delivered many sound judgments which form a good basis to formulate a coherent theory of the concept of an administrative act. Yet, in Du Preez and Mugimu, the courts espoused some ideas which do not adhere to the principle of a direct, external legal effect of administrative action before it can take effect that has been formulated in Esselmann. The retroactivity of administrative action creating burdens and other disproportionate measures challenged in these cases are not in compliance with the principle of proportionality, which is embedded in article 18 of the Constitution.
Administrative Justice as Human Right: A Perspective from South Africa
2021
Administrative justice should be a human right. However, it is not easily subsumed into the general body of human rights law because administrative law principles are largely procedural in character, hence, subject to domestic law. In some countries administrative justice is dependent on its development via common law by the courts, while in others is possible to have recourse to a constitutional provision permitting persons whose right is infringed by state action to seek constitutional redress. The article discusses administrative justice as a human right under the South African Constitution with a view to showing potential learning experience for other jurisdictions, and to possibly provide knowledge as to how best the legal framework pertaining to administrative justice could be developed to strengthen the protection of rights violated by action of government or those acting on its behalf. In South Africa, the Constitution and the PAJA constitute the source of the right to just ...
The Coherence of the Doctrine of Legitimate Expectations
The doctrine of legitimate expectations is a developing area of administrative law, and many issues remain outstanding. Promises, practices, and policies generate legitimate expectations, but what is special about them? Why do they and only they generate legitimate expectations? The lack of an obvious answer has led some commentators to claim that the doctrine is ultimately incoherent and should be disaggregated. In this paper, we challenge this claim by arguing, first, that promises, practices, and policies each comprise or make applicable a certain type of rule, and second, that having a legitimate expectation is a matter of such a rule binding a public body to act in some way. This rule-based account gives the doctrine of legitimate expectations both coherence and distinctiveness.
JUDICIAL REVIEW AND LEGITIMATE EXPECTATION
Royal Institute of Colombo Law Journal 2021 - Volume II. , 2021
Legitimate Expectation, as a ground of Judicial Review of government actions, has become an extremely popular choice for an overwhelming number of litigants who wish to pursue a remedy through the Writ Jurisdiction vested in the Court of Appeal by Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka. Scores of those applications have been rejected by the Honourable Court of Appeal because the applications themselves are misconceived in law and in fact. This article, therefore, aims to clarify the intricacies of the principle of Legitimate Expectation considering the recent Judgment of the Honourable Court of Appeal and those treatises of eminent Jurists that have become synonymous with Administrative Law. It aims to provide a general overview of the substantive and procedural aspects of the principle of Legitimate Expectation. The article will also provide a brief overview of the case law in relation to those aspects. It will traverse, in brief, the doctrinal connections of those above-mentioned aspects to the demands of Natural Justice and the Doctrine of Estoppel. An application to the Honourable Court of Appeal based on a legitimate expectation per se is notoriously difficult to succeed and hence, ancillary issues that may be taken cognizance of by the Honourable Court of Appeal before an application of that nature is allowed and a writ is issued in the favour of the Petitioner by the said Honourable Court is also traversed in brief. The article, finally, also poses a proposal pertaining to how the doctrine may be used to ensure good governance in Sri Lanka. The authors welcome any feedback that may emanate from a reading of the article.
Obiter
The rule of law is expressly mentioned in the Constitution of the Republic of South Africa, 1996. The principle of legality has flourished in South African administrative law since its recognition and reception into our law in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC). The Indian Constitution does not contain an equivalent expression of the rule of law. Notably, how persons and societies in India govern themselves is premised upon beliefs akin to the rule of law. Moreover, Indian administrative law has been strongly influenced by the theory of the rule of law as advocated by Dicey. Whilst Indian administrative law relies heavily upon the rule of law to judicially review conduct that is capricious, South African administrative law has come to rely on the incident of the rule of law, namely the principle of legality. This contribution inspects some of the reasons why the rule of law is heavily relied on in Indian administr...