Natural Justice

General

 

The principles of natural justice embody fundamental notions of procedural fairness and justice. As applied to administrative decisions, these principles seek to ensure that such decisions are only taken after fair and equitable procedures have been followed. In essence, natural justice tries to guarantee that the parties who will be affected by the decisions receive a fair and unbiased hearing. By required adherence to standards of procedural fairness, not only is justice seen to be done, but also these principles assist administrative decision-makers to reach substantively correct decisions. If the principles are observed, decisions are reached only after the tribunals have been informed of facts relevant to their determinations and decisions are reached on an objective evaluation of the evidence and not on any grounds of personal interest or hostility or favouritism to particular parties.

 

There are two principles of natural justice. These are–

 

  • The principle that the party or parties involved in the matter should be given the proper opportunity to present their cases before the administrative decision-maker decides the case. (This is referred to as the audi alteram partem principle, which means, literally, hear the other side i.e. hear both sides.)
  • The principle that all the administrative decision-makers should be impartial and unbiased in their deliberations. (This is referred to as the nemo judex in sua causa principle which means, literally, that no person may be a judge in his own cause.)

 

Variable content

The principles of natural justice are not a set of rigid, fixed and invariable rules. Natural justice principles seek to ensure that there is fundamental fairness, but what particular procedures are needed to achieve fundamental fairness will vary from case to case. As already pointed out, the procedures of administrative tribunals are supposed to be more informal and flexible than those of courts of law. Under the principles of natural justice it is thus not required that administrative tribunals must follow the procedures which appertain to court cases. Instead of specifying a series of fixed and immutable procedural rules, the principles of natural justice establish only a number of broad procedural safeguards which will apply in a varying fashion to the very wide variety of different types of cases handled by administrative authorities.

 

For example, an oral hearing is not always required in order to achieve fairness, see Crow v Detained Mental Patients Special Board 1985 (1) ZLR 202 (H);1985 (4) SA 175 (ZH) andMetsola v Chairman, PSC & Anor 1989 (3) ZLR 147 (S) at p 154 See also Makwavararav Secretary for Transport HH-154-89 and Chairman, PSC & Anor v Marumahoko 1992 (1) ZLR 304 (S). Another example is that there is no fixed period of notice under the audi alteram partem principle. All that is required is that a person must be given reasonable notice of an impending hearing. The reasonableness of the amount of notice given in any particular case will depend upon factors such as the seriousness and complexity of the case. See Ford v Law Society of Rhodesia 1977 (2) ZLR 40 (A) at 55-56; 1977 (4) SA 175 (RAD) and Rwodizi v Chegutu Municipality 2003 (1) ZLR 601 (H).

 

In the Crow case the court held that the spirit encapsulated in the precepts of “natural justice” is applied neither rigidly nor blindly, but fluidly and flexibly, taking into account not only the considerations of the individual but those of government as well; with a mature outlook and recognition that in some cases the public interests may legitimately supersede those of the individual.

 

 

When principles apply

 

General

 

In Zimbabwean law, the legitimate expectation test is now used to decide whether natural justice principles apply to a particular administrative decision. In the past in Zimbabwe, the courts decided this issue by seeking to determine whether the decisions were quasi-judicial as opposed to purely administrative decisions. However, even when this distinction was applied, the courts sometimes took the view that though the decision concerned was of a purely administrative nature, the official or tribunal was nonetheless obliged to deal with the matter in a fair manner. The problem with this approach was that the cases did not properly explain how the obligation to behave fairly differs from the obligation to adhere to principles of natural justice that, after all, embody notions of basic fairness. See Crow v Detained Mental Patients Special Board1985 (1) ZLR 202 (H).

 

Old approach

 

Under the old approach, the principles of natural justice would be held not to apply to decisions which were classified as of a so-called purely administrative character; they only applied if it was quasi-judicial in nature. (However, relatively few types of decisions have been classified as being purely administrative rather than quasi-judicial.) The tests that the Zimbabwean courts previously used were those enunciated in the case of Hack v Venterspost Municipality 1950 (1) SA 172 (W). The decision-making capacity was deemed to be quasi-judicial if both of the following were present–

 

  • The tribunal or official had an obligation to inquire into matters of fact, or matters of fact and law, before making the decision rather than making the decision at its absolute discretion. This obligation may be clearly indicated by a statutory provision requiring an enquiry, or it may be implied if there is a dispute between two or more parties. On the other hand, if the ground upon which a decision is to be taken and the means that need to be taken to extract information before acting are left to absolute discretion, then the decision may be held to be of a purely administrative nature.
  • The decision will affect a person’s rights or liberties or involve him in civil consequences. This is really the critical criterion because if the court finds that the decision seriously affects rights or has drastic consequences for someone, it is very likely that the court will imply that there was an obligation to mount an enquiry before reaching that sort of decision.

 

See Tabakian v DC, Salisbury 1973 (2) RLR 348; 1974 (1) SA 604 (R); de Wet v Patch 1976 (1) RLR 65 (G); 1976 (2) SA 316;  Hussey v Rhodesia Conscientious Objectors Exemption Board 1976 (2) RLR 73 (G) at 84; Macara v Minister of Information and Tourism 1977 (1) RLR 67 (G); 1977 (2) SA 264 (R); Crow v Detained Mental Patients Special Board 1985 (1) ZLR 202 (H); 1985 (4) SA 175 (ZH); Nguruve v Secretary, Commission of Inquiry HH-158-86 (definition of quasi-judicial tribunal)and Law Society of Zimbabwe v Lake 1988 (1) ZLR 168 (S) (disciplinary body of Law Society.)

 

These criteria were vague and imprecise and were difficult to apply. However, the most important thing was that under this approach the decision would have been treated as quasi-judicial only if it prejudicially affected a person’s liberty or rights which he had already acquired.

 

New approach - legitimate expectation doctrine

 

As Baxter points out at pp 573-577, in the home of its birth (the United Kingdom) and in almost every other country where it was formerly applied, this distinction has been discredited and natural justice now governs all types of administrative decisions. The watershed case in the United Kingdom was that of Ridge v Baldwin[1964] AC 40. 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). South Africa then emphatically abandoned the approach of resting the applicability of natural justice principles on whether the decision is quasi-judicial or purely administrative. The deathblow to this distinction was delivered in the South African Appellate decision of Administrator, Transvaal & Ors v Traub 1989 (4) SA 731 (A). The new approach enunciated in that case is to apply the legitimate expectation principle. The court said–

 

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. 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).

 

The court also said in that case that it did not think that the quasi-judicial/purely administrative classification was of any material assistance in deciding whether natural justice principles apply.

 

The present position in South Africa is thus that natural justice principles will not only apply if the decision will prejudicially affect the liberty, property and existing rights of the individual but also where he has a reasonable expectation that he would acquire or retain some substantive benefit, advantage or privilege. Where he does have such an expectation the benefit, advantage or privilege should not be withheld or withdrawn without first hearing from that person.

 

For a full listing of the other important South African cases and the relevant English cases on legitimate expectation see the later cases section under the heading Natural Justice - legitimate expectation.

 

The Zimbabwean Supreme Court has adopted the approach in the South African case of Traub into Zimbabwean law, thereby abandoning the classification into quasi-judicial and purely administrative in favour of the legitimate expectation test. This new approach was first referred to 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 Logan v Morris NO & Anor 1990 (2) ZLR 65 (S) at p 68, the Supreme Court had this to say–

 

These are indications of a developing approach to the validity of administrative acts in which the old distinction between quasi-judicial acts on the one hand and purely administrative acts on the other, has been swept away. Quite apart from the cases referred to by counsel, the whole matter has now been re-stated in clear and simple terms, as far as the Roman-Dutch law is concerned, by Corbett CJ in Administrator, Transvaal v Traub 1989 (4) SA 731 (A). In considering an earlier dictum in which the distinction had been made, he said (at p 763H):

 

This dictum appears to define ‘quasi-judicial’ in terms of the effect which the decision has upon the individual concerned. On this basis, a classification as quasi-judicial adds nothing to the process of reasoning: the court could just as well eliminate this step and proceed straight to the question as to whether the decision does prejudicially affect the individual’s concerned. As I have shown, traditionally the enquiry has been limited to the prejudicial effect upon the individual liberty, property and existing rights, but under modern circumstances it is appropriate to include legitimate expectations. In short, I do not think the quasi-judicial/purely administrative classification, relied upon by counsel, is of any material assistance in solving the problem presently before the court

 

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.

 

In the case of H v St John’s College 2013 (2) ZLR 621 (H) the court said that the legitimate expectation doctrine is an extension of the audi alteram partem rule. It was a product of judicial activism meant to fill up a lacuna in the law. The legitimate expectation doctrine 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. The audi alteram partem rule, and its extension, the doctrine of legitimate expectation, are flexible tenets. Their proper limits are not precisely defined. One of the problems with the concept of legitimate expectation has been its imprecise limits. The courts have been careful not to leave it too loose.

 

In B (A Juvenile) v Minister of Primary and Secondary Education 2014 (2) ZLR 341 (H) the court pointed out that the audi rule and its extension in the form of the legitimate expectation doctrine were fundamental human rights which are entrenched in the Constitution and incorporated into the Administrative Justice Act. It found that in the procedure used to suspend and expel a school pupil had failed to measure up to the basic tenets of the audi rule or the legitimate expectation doctrine

 

Where an established policy, a regular practice or an undertaking or promise

 

Public officials who exercise public power are expected to exercise that power rationally, fairly and consistently. To avoid arbitrary administrative action, there must be regularity, predictability and certainty in the way in which public administrators deal with members of the public. Thus in the field of public administration, the starting point is that where an administrative official has given a promise or undertaking, the person or persons to whom it was made have a legitimate expectation that the promise or undertaking would be honoured. Similarly where there is in existence a long established policy or a regular practice, members of the public would expect that this would normally be followed. Citizens have more confidence and trust when public administration is carried out in a consistent and predictable fashion. Particularly where a public official has been given a member of the public a firm undertaking or has promised him that something will happen or will not happen, the person concerned will understandably feel aggrieved if the official does not honour that undertaking or promise.

 

At the same time, government is entitled to change pre-existing policies where this is necessary in the public interest and the government must not be fettered in adjusting its policies where this is demanded by the overall public interest. But the bottom line is whether the change or policy must indeed be in the public interest and necessary for the public good. At least where persons who have relied on the established policy and who will be adversely affected because of the alteration of the policy, should be heard from first before the policy change affecting them is brought into operation. Similarly before reneging on a promise or undertaking on the basis that this is necessary for the general public good, the official should first hear from the person who will be affected before going ahead with the action.

 

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.

 

In Matake         the applicants were public servants employed at a teachers’ training college. Their main task was to provide catering and cleaning services at the college. The Ministry sub-contracted private companies to provide these services, thus rendering the applicants redundant.  The applicants were retrenched. They requested their Ministry to be allowed to purchase the government houses in which they had been living for many years. Nearly two years later their Ministry replied, saying that a policy was being formulated and that the sitting tenants would be advised. Eighteen months later, the Ministry Secretary told the applicants that their request to purchase the houses had been turned down. They were given three months’ notice to vacate. The applicants did not move out or seek a review of the decision, but instead, at the expiry of the three month period they obtained a provisional order which stayed their eviction. At the hearing at which they applied for confirmation of the provisional order, they sought an order compelling the respondent to sell the houses to them. They claimed that the first letter gave rise to a legitimate expectation that the houses would be sold to them.

 

The court decided that there could be no question of the applicants having a legitimate expectation. There was no representation to the applicants that the houses would be sold to them – let alone a clear, unambiguous and unqualified representation. Nor were the applicants’ expectations to that effect reasonable. All that the letter stated was that their request would be considered, which could mean either a favourable or an unfavourable outcome of the consideration.

 

In Mudarikwa & Anor v Director of Housing & Anor 2007 (1) ZLR 41 (S) some Municipal employees had been acting as district officers, although they did not have requisite qualifications for job. Their superior, Director of Housing, recommended that these employees be confirmed in these posts, but he withdrew this recommendation when he found they didn’t have required qualifications for these posts. These jobs were then advertised and these employees not invited to these interviews. The employees then applied for an interdict to stop municipality from appointing other persons to these jobs, arguing that even though they didn’t have the required educational qualifications, that he had the experience entitling them to promotion to posts. They maintained that they wouldn’t have been employed in an acting capacity for so long if they were not qualified for posts. Further, they claimed entitled to be promoted into these posts because other employees in similar positions had been promoted and thus that they had legitimate expectation of being promoted.

 

The court held that promotion was not automatic. Employees didn’t have right to be promoted; the employer had discretion in this regard. There could be no legitimate expectation that the employees would be promoted to positions for which they didn’t have required qualifications, irrespective of their experience in jobs. Nor could they have legitimate expectation to be promoted because of promotion in past of other employees in similar positions, if Director of Housing had acted on basis of misapprehension of factors to be taken into account in making recommendations for promotion. 

 

In a Zimbabwean tax case [Zimbabwean Fiscal Appeal Income Tax case no 1674 (2000) 62 SATC 116] a taxpayer was registered operator dealing in motor vehicles. It did not raise sales tax on vehicles it sold where these had been paid for in a foreign currency. In not charging sales tax, it relied on two letters written by senior officials in the Department of Taxes to the effect that where vehicles are bought in foreign currency not sales tax was payable. These letters were based on mistaken view of the law. The Commissioner of Taxes later demanded payment of sales tax in respect of certain of these sales. The court held that the letters had created a legitimate expectation that the policy would be followed until the parties were advised to the contrary. Any change of policy should be made operative prospectively so as to enable the taxpayer so as to enable the taxpayer to recover sales tax from those persons paying in foreign currency. As regards the demand for unpaid sales tax the court pointed out that–

 

it would be unfair if the Department, having advised that the sales in question were exempt from sales tax, were to be permitted to demand the sales tax. It is not as thought the appellant has collected the extra money from the buyers of the vehicles and thereby gained greater profits. The buyers were advised that the sales tax element was not payable. The change of policy and demand for sales tax that was not collected is, in my view, equivalent to a breach of contract or a breach of representation.

 

The court held that the Commissioner had abused his powers by acting in the way he did. The assessments against the taxpayer were consequently set aside.

 

In the case of Administrator, Transvaal & Ors v Traub1989 (4) SA 731 (A)  there was a long-standing practice of appointing doctors as Senior House Officers at a provincial hospital once they had been recommended for these posts. However, the doctors in question had not been appointed in accordance with this practice apparently because they had all signed a published letter critical of the provincial administration. The court held that the past practice had given these doctors a legitimate expectation of being appointed to these posts and they thus were entitled to be heard from before a decision was made to depart from this practice.

 

In H v St John’s College 2013 (2) ZLR 621 (H) the court stated that a regular practice may give rise to a legitimate expectation. The doctrine of legitimate expectation has no application where the perceived rights were in fact mere privileges.

 

Where no regular practice, established policy or undertaking

 

In Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S) the court held that the application of the legitimate expectation doctrine is not confined to situations where the person affected can show that there is an established practice to grant a hearing; it applies in any circumstances where there is a legitimate expectation that the person will be consulted before the decision is taken. At pp 333-334, the court pointed out that doctrine of legitimate expectation simply extended the principle of natural justice beyond the prior established rule that a person was only entitled to a hearing if he could show that a prior existing right had been infringed by a quasi-judicial body.

 

The facts in this case were that a senior lecturer at the Bulawayo Polytechnic College had been laterally transferred from his post to a similar post at the Harare Polytechnic College. His salary conditions were to remain the same and he was to be reimbursed for reasonable relocation expenses. 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. It was not to be assumed that in every case a person being transferred had the right to a hearing before being transferred. In a busy Ministry it would be quite unworkable to have to grant hearing to every single person wants to transfer. This would lead to substantial delays and the extra work entailed would adversely affect efficiency of operations. In deciding this issue the court should take into account the position and circumstances of the person. In general professional employees of long standing, holding senior positions, should not be transferred without taking account of personal situations and wishes. It would suffice to allow the person concerned the right to make written representations.

 

The court stated that in general, professional employees of long standing, holding senior posts, should not be transferred without account being taken of their personal situation and wishes. Where it is necessary to hear from the person first before transferring him, it suffices to allow him to make written representations. Relevant factors were his age, seniority, the responsibilities of his job, the fact that he would not occupy the same prestigious position in Harare as he had in Bulawayo and the fact that he would suffer economic loss as a result of the transfer. The court decided that in relation to Taylor the circumstances were such that he had a legitimate expectation that he would be consulted before being transferred.

 

Another case involving the transfer of an employee is Kanonhuwa v Cotton Co of Zimbabwe 1998 (1) ZLR 68 (H). In this case the applicant, who worked for the respondent as a clerk, had been stationed at the respondent’s Sanyati depot. When she got married, she requested and was granted a transfer to Harare, where her husband lived. She asked for an inter-departmental transfer; this was also granted. After she had been in Harare for some time, she was ordered, at short notice, to transfer to the company’s Manoti depot in the Gokwe area. She protested but the order was confirmed. It was argued on her behalf that the legitimate expectation rule applies to both quasi-judicial and purely administrative acts and that she was entitled to be heard before the decision was made. The court held that in the circumstances of this case the applicant had a legitimate expectation to be heard. The respondent had agreed to transfer her to Harare because of her personal circumstances, and before transferring her elsewhere she should have been heard as her circumstances remained essentially the same.

 

In Health Professions Council v McGown 1994 (2) ZLR 329 (S) when it renewed the practice certificate of a medical practitioner, the Health Professions Council had imposed various restrictions on how he could practice. It was found that these restrictions were highly prejudicial and damaging to his standing as a professional man. The court held that a medical practitioner had a legitimate expectation that the Council would not impose drastic restrictions on his practice without first hearing from him. He had a right to be afforded a reasonable opportunity to make representations before these restrictions were imposed. The taking of the decision without allowing him a chance to make representations was a breach of the principles of natural justice.

In Guruva v Traffic Safety Council of Zimbabwe 2009 (1) ZLR 58 (S) the appellant was notified by the respondent, his employer that he was to be transferred to another town. He wrote back, making submissions against the transfer, and giving personal reasons for objecting to being transferred. A meeting of the employer’s directorate was held to discuss the matter. The directorate notified the appellant that, after a thorough consideration of his submissions, the decision that he be transferred would stand. The appellant referred the matter to a labour relations officer, who referred the matter for arbitration. The arbitrator held that the respondent had not observed the dictates of the audi alteram partem rule and declared that the transfer was unlawful and should be reversed. The respondent successfully appealed to the Labour Court. On appeal to the Supreme Court, the appellant argued that the respondent had not observed the audi alteram partem rule, nor had it fulfilled his legitimate expectation of being heard before being transferred.

 

The court held that the appellant should have been granted a hearing before the decision to transfer him was made. However, the respondent had considered the appellant’s submissions; it was not as if the respondent refused to hear him. It could not be said that once the appellant made representations, the respondent should necessarily have made a different decision. It was still open to the respondent to arrive at the same decision even after hearing the appellant. The respondent may have erred in not giving the appellant a hearing in the very first place; but, since the respondent did not compel the appellant to go on transfer before he was heard, but deliberated on the issue before re-affirming its previous decision, his legitimate expectation of being heard and the requirement of the audi alteram partem rule were complied with.

The court pointed out that an employee who undertakes to work for an employer whose business is carried out at different places takes the risk of being sent to perform services for the employer wherever such services are required unless the employment contract stipulates that he is to be employed and remain at a specific place only. The right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer’s discretion in determining which employee should be transferred and to which point of the employer’s operations is not to be readily interfered with except for good cause shown. Good cause, while not easy to define, would include such matters as unfounded allegations, victimization of the employee and any action taken to disadvantage the employee.

 

The case of Muwenga v PTC 1997 (2) ZLR 483 (S) involved a situation where an employee did not receive a promotion he was expecting. The appellant had been the acting telephone supervisor at an exchange for a long period and had given good service during this time. When the substantive position was filled, however, the appellant was not appointed to the post and the post went to someone else. The Labour Relations Tribunal found that the failure to promote the appellant to the post of superintendent did not amount to an unfair labour practice. It was held that in the circumstances the employer had not created a situation which caused the appellant legitimately to expect that he would be promoted into the post in which he was acting. Most importantly, although the appellant had experience in the post, he lacked the required academic qualifications for the post. The decision to appoint a person with the required qualifications had not been unfairly arrived at. There is a need for the courts to avoid undue interference in the administration of public authorities. Indeed, it could be contended with some persuasion that the promotion of an employee is a privilege, left to the discretion of the employer. It is not a right an employee is entitled to claim, unless his contract of employment so provides.

 

In Foreman & Anor v KLM Royal Dutch Airlines 2001 (1) ZLR 108 (H) the contract of employment of airline employees provided that employees were entitled to apply for airline tickets at a reduced rate. Two airline employees had applied for but had been refused such reduced rate tickets. The contract explicitly provided that this reduced rate travel benefit was a privilege and not a right. The court held that the fact that the employees had been granted this benefit when they had applied in the past, did not convert the privilege into a right. They could not therefore rely on the legitimate expectations doctrine. Whilst it may have been unfair not to give the employees an opportunity to be heard before the decision was made, it did not render the decision unlawful.

 

This judgment is very confused. The judge seems to have thought that the legitimate expectation doctrine only applies in respect of a right. This is not so. The whole essence of the doctrine is that it applies not where there is a right but where there is a legitimate expectation that the person will receive a benefit, privilege or advantage. Where there is such an expectation the person concerned is entitled to be heard from first before such benefit, privilege or advantage is withheld. Strangely, however, the judge concluded her judgment by saying at p 116 that if the applicants had requested it, the court may have been inclined to order that the employees be given an opportunity to be heard before in the future they were denied the benefit.

 

Despite the emphatic acceptance of the legitimate expectation doctrine by the Supreme Court, surprisingly in the Foreman case at 115F-H the High Court judge seems to suggest that the Zimbabwean courts have adopted an ambivalent approach in regard to the acceptance of the legitimate expectation doctrine.

 

In Makromed (Pvt) Ltd v Medicines Control Authority of Zimbabwe HB-36-11 the applicant had been a wholesale dealer in medicines and pharmaceutical products since 2002. Such business was conducted by virtue of a wholesale dealer’s permit issued by the respondent in terms of the Medicines and Allied Substances Control Act [Chapter15:03], which permit was valid for a period of one year. Accordingly, the applicant was enjoined to renew that permit annually before it expired. The applicant’s last permit expired at the end of March 2009 without an application for renewal being made in the prescribed manner. The following month the respondent pointed out this failure and, following representations by the applicant, stated that it would allow the permit to be renewed on payment of the required fee. In spite of this indulgence (which was not sanctioned by the relevant legislation), the applicant failed to submit an application for renewal.  Instead, it forged a permit and traded using the forged permit. When this was discovered, the applicant submitted an application on the necessary form and deposited the fee. The application was rejected. The applicant sought an order declaring the respondent’s failure to renew the permit as constituting an unreasonable and unfair administrative action in breach of s 3 of the Administrative Justice Act [Chapter 10:28] and directing the respondent to forthwith renew its permit. It was submitted that the applicant had a legitimate expectation that a permit would be issued and accordingly was entitled to the relief provided for in s 4 of the Act.

 

The court held that in terms of both the Medicines and Allied Substances Control Act and the regulations, an application for a renewal of a permit can only be made before the expiration of the permit. Such an application may only be made on the prescribed form, accompanied by the prescribed fee. No such application was made by the applicant before its permit expired. The communication between the parties which came after that did not constitute an application for renewal which the respondent was required to consider. The law does not protect every expectation; it only protects a ‘’legitimate’’ one. Legitimate or reasonable expectations may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. Here, the applicant had been renewing its permit for several years in accordance with the provisions of both the regulations and the Act. At no time was it allowed to renew the permit after it had expired or without submitting the prescribed form. There was thus no general promise that renewal would be made out of time.

 

In MWI Zimbabwe (Pvt) Ltd v Ruwa Town Council & Anor HH-237-11 the court dealt with the issue of whether there could be a legitimate expectation in respect of a tender. It decided that until the offer of the contract was communicated, the applicant had no legitimate expectation that the tender would be awarded to it. Further, the process of oversight by the minister or council over council decisions demonstrated the absence of any legitimate expectation by any tenderer in the process until the conclusion of the oversight role.

 

See also PF-Zapu v Minister of Justice (2) 1985 (1) ZLR 305 (S); Public Service Commission v Tsomondo 1988 (1) ZLR 427 (S); Metsola v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (S) at p 155-156; Logan v Morris NO 1990 (2) ZLR 90 (S) at 4-5 and Turner v Master & Anor HH-116-92

 

Although the scope of the legitimate expectation test is not always easy to determine, it is unjust to exclude the protective coverage of natural justice principles from a group of decisions which are marked off as purely administrative. Additionally, the actual tests that had in the past been invoked to maintain this distinction between quasi-judicial and purely administrative decisions were so vague and imprecise that they are exceedingly difficult to apply.

 

South African cases

In Administrator, Transvaal & Ors v Traub 1989 (4) SA 731 (A) the facts were that for a long time, doctors had been promoted to senior health officer post on recommendations of head of department. It was decided not to appoint these doctors although they qualified for the posts and had been recommended by head of department. Apparently, the reasons why they were turned down was that they had protested about bad conditions at the hospital at which they were employed. The court held that they had a legitimate expectation that they would be heard from first if the authorities intended to depart from the practice of appointing such doctors as a matter of course on the recommendation of the head of department.

In Khan v Chairman, Road Transportation Board & Anor 1993 (2) SA 828 (A) an objector had a right to be informed about meeting at which the applicant for transport permit was applying to ply same route as that for which the objector held a permit.

In Union of Teachers’ Associations of SA & Anor v Minister of Education and Culture & Anor 1993 (2) SA 828 (2)a Minister responsible for education had decided that, due to financial constraints, no temporary teachers were to be appointed as substitutes for teachers who went on leave. The decision revoked an earlier one, reached after consultation with the teachers’ union,  that cost-cutting measures would be shelved. The Minister reached the decision without consulting the teachers’ union or school principals. The court held that the union and the school principals were entitled to expect that they would be consulted about the non-appointment measures, and the Minister’s failure to consult them was clearly unfair and should be set aside on review.

The cases of Administrator, Transvaal & Ors v Zenzile & Ors 1991 (1) SA 21 (A) and Administrator, Natal & Anor v Sibiya & Anor 1992 (4) SA 532 (A) involved the dismissal from employment of employees.

The cases of Ngema/Chule v Minister of Justice, Kwazulu & Anor 1992 (4) SA 349 (N) and Hlongwa v Minister of Justice, Kwazulu 1993 (2) SA 267 (D) involved transfer of civil servants.

The case of Omar & Ors v Minister of Law and Order & Ors 1987 (3) SA 859 (A)  involved the detention without trial of a person

In Minister of Justice, Transkei v Gemi 1994 (3) SA 28 (TkA) an assistant administrative clerk in the office of the Attorney-General has applied to be transferred to a particular town in order to be close to his family. Instead he was transferred to a place that was 100km further away from his home. The court held that when he applied for a transfer he expected it to be granted or refused. If it was refused he expected to stay in the place that he was in presently. He was transferred to the new place without being given a hearing. There was no practice of affording a hearing and nothing in conditions of service that hearing would be granted. Nonetheless, the court ruled that the clerk had a legitimate expectation that he would be heard from first before decision taken.

In Makgoto & Ors v Sethogelo Technikon & Ors 1994 (4) SA 115 (BGD) after a year of study, students had been refused a re-admission on the grounds that they had participated in unrest. They had a legitimate expectation that they would be not be refused re-admission and would not be expelled on punitive grounds without first being afforded a hearing.

In Ramburan v Minister of Housing (House of Delegates) & Ors 1995 (1) SA 353 (D) the State had cancelled a statutory tenancy. The court held that the tenant had a legitimate expectation that he would be heard from first before his lease was cancelled.

The case of Xu v Minister van Binnelandse Sake 1995 (1) SA 185 (T) involved an application by an alien applied for a temporary residence permit.

The case of Ramon v Williams NO 1998 (1) SA 270 (C) involved a situation in which the prison authorities had cancelled the probation of a released prisoner.

In Yuen v Minister of Home Affairs & Anor 1998 (1) SA 958 (C) the authorities had cancelled the applicant’s residence permit.

In Omar & Ors v Minister of Law and Order & Ors 1987 (3) SA 859 (A) a person had been detained without trial.

 See also Langeni & Ors v Minister of Health and Welfare 1988 (4) SA 93 (W) and Lunt v University of Cape Town & Anor 1989 (2) SA 438 (O); Laubscher v Native Commissioner, Piet Retief 1989 (3) SA 147 and Claude Neon v City Council of Germiston 1995 3 SA 710 (W)

 

English cases

Ridge v Baldwin [1964] AC 40; Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904 (CA); CCSU & Ors v Minister for the Civil Service 1984 (3) All ER 935 (HL); R v Home Secretary, Ex P Khan [1984] 1 WLR 1337; R v Inland Revenue Commissioners, Ex P Preston [1985] AC 835; R v Secretary for State for the Home Department, Ex P Ruddock & Ors [1987] 1 WLR 1482 (QBD); R v North and East Devon Health Authority, Ex P Coughlan [2000] 2 WLR 622.

 

Legitimate expectation in labour matters

 

The Labour Act [Chapter 28:01] provides in section 12B(3)(b) deals with the termination of the employment of an employee who is on a contract of fixed duration. Such an employee will be deemed to have been unfairly dismissed if when the contract is terminated he or she had a legitimate expectation that he or she would be re-engaged and another person was engaged instead of the employee.

 

The more occasions the contract is continued, the more likely the court will find that the failure to renew the contract was an unfair labour practice.

 

Legitimate expectation and substantive rights

 

In South Africa and England the courts have moved in the direction that sometimes a legitimate expectation can lead not only to a right to a hearing before the decision is taken (a procedural right) but sometimes also to a substantive right. The Zimbabwean courts have not yet adopted this approach.

 

South Africa

 

In the case of Premier of Mpumalanga v Executive Committee of State-Aided Schools: Eastern Transvaal 1999 (2) BCLR 151 (CC) the provincial authority decided in 1995 summarily to terminate the payment of bursaries to needy students in state-aided schools. These bursaries were being paid in the main to schools that mostly educated white students. It was accepted by the parties that this scheme was one of the unfair legacies of apartheid and that scheme had to be terminated. The only dispute was about the manner and timing of the termination. The court decided that no reasonable notice was given when the authority informed schools of the termination of the bursaries. This was unconstitutional as it violated the right to procedurally fair administrative action. It would be futile to refer the matter back to the authority as it could no longer take action to cure the unconstitutionality. The period for which the bursaries were to run had already expired (i.e. the end of 1995) and it was not now possible to give reasonable notice to the parents and the school governing body. The court ordered that the bursaries be paid up to the date that the bursaries expired.

 

England

 

In England in a number of cases the courts have found that sometimes a substantive right derives from a legitimate expectation. The main situation where this has come up is the following. If an individual has relied on earlier policy that has now been changed, he or she may seek to claim the substantive benefit that would have been forthcoming had the policy not been changed. A public authority is of course permitted to change its policy. The question is what should happen in respect of persons who have relied on the previous policy before it was changed.

 

See R v Ministry for Agriculture, Fisheries & Food, ex p. Hamble (Offshore) Fisheries Ltd[1995] 2 All ER 714 .

 

Craig Administrative Law (4th ed) p 628 points out that if the only remedy the court can grant is to order that the authority now give the person affected a hearing, the authority can simply go through the motions of re-hearing and still refuse to change its mind. To avoid this in the case of R v Secretary of State for the Home Department, ex p Khan[1985] 1 All ER 40 the court adopted a two-stage approach in cases where a person has been affected as a result of a change in policy. The court will firstly decide whether the policy change has been made without giving the person affected a proper opportunity to be heard first. Secondly, the court will also consider whether the public interest demanded that the policy be changed. The court can order that the substantive benefit be granted if there was no valid public interest for changing the policy.

 

Craig at p 613 points out that there are various types of situations that can arise. These are

 

  • A general norm or policy choice which an individual has relied on has been replaced by a different policy choice;
  • A general norm or policy choice had been departed from in the circumstances of a particular case;
  • An individual representation has been made to a person which he has relied upon but then the public authority seeks to depart from this in the light of a shift in general policy;
  • An individual representation has been made to a person which he has relied upon but the public authority then changes its mind and makes a decision in relation to that person which is inconsistent with the original representation.

 

The last case is usually seen as being the strongest basis for claiming a legitimate expectation.

 

Review of disciplinary bodies

 

In the case of Vice-Chancellor, University of Zimbabwe & Anor v Mutasah & Anor 1993 (1) ZLR 162 (S) the Supreme Court ruled that university disciplinary proceedings against students were reviewable by the courts, both in terms of s 27 of the High Court of Zimbabwe Act 1981 and under common law.

Whether natural justice principles apply to cases governed by contract

 

In the case of Chirasasa & Ors v Nhamo NO & Ors S-135-03 the court held that there is a presumption in favour of the application of the audi rule when the decision is made in the exercise of a statutory power unless the rule is expressly excluded. There is no similar presumption when a decision is taken in the exercise of a contractual right, because the question in the area of contract is whether or not failure to hear the other party constituted a breach of contract. A party cannot be in breach of an obligation which has not been made an express or implied term of the contract. An obligation to afford a hearing was not implied in the pure contract of master and servant in respect of the latter’s dismissal.

 

In the case of U-Tow Trailers (Pvt) Ltd v City of Harare & Anor 2009 (2) ZLR 259 (H) the court pointed out that the rule at common law is that tenets of natural justice have no application in the law of contract unless the aggrieved party can prove that the contract impliedly imported and incorporated such into the contract. However, even before to the enactment the Administrative Justice Act, Zimbabwean courts were generally alive to the need to import fairness into administrative decisions, even those that were founded primarily on contract, especially the employment contract. The Administrative Justice Act now requires that all administrative authorities as defined in the Act who enter into contracts with private individuals or companies comply with the requirements of the Act in relation to legality, reasonableness and procedural fairness. Thus in this case a city council was not permitted to cancel a lease until there had been a fair hearing to determine whether the terms of the lease had been breached.

 

In the case of H v St John’s College 2013 (2) ZLR 621 (H) the court pointed out that the audi alteram partem rule has been extended to the realm of private contracts between a private individual and a private entity. In all cases fairness is the overriding consideration.

 

Although this is not a matter for Administrative Law, it is arguable that attempts to exclude the basic principles of natural justice in a contract between two private parties are unfair terms that the court could cancel or ameliorate in terms of the Consumer Contracts Act [Chapter 8:03].

 

 

 

Whether natural justice principles can be excluded by legislation

 

With decision-making powers deriving from statute, it would seem the Legislature may expressly or by necessary implication exclude all or some of the principles of natural justice or may modify the application of certain aspects of these principles. See de Wet v Patch 1976 (1)  RLR 65 (G)  and Austin & Anor v Chairman, Detainees’ Review Tribunal & Anor 1986 (4) SA 281 (ZS). However, the constitutionality of the exclusion of natural justice principles may well be unconstitutional.

 

Can Parliament, pass legislation excluding the application of principles of natural justice without violating the Constitutional guarantee of a fair hearing (section 18)? There are various constitutional provisions which are relevant in deciding this issue. These include s 18(9) which lays down that every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations and s 16 which deals with protection from deprivation of property.

 

In the case of Chairman PSC & Ors v Hall S-49-89 at p 7, the judge said obiter at p 7–

 

It may be that in a country with a justiciable Bill of Rights one cannot apply the dictum of Stratford ACJ in Sachs v Minister of Justice 1934 AD 11 at 38 where he said: ‘Sacred though the maxim (audi alteram partem) is held to be’, Parliament is free to violate it. ‘Even if Parliament were free to violate it, one might ask whether a subordinate authority such as the [Public Service] Commission is free to do so.’

 

In Holland & Ors v Minister of the Public Service & Ors 1997 (1) ZLR 186 (S) the applicant challenged the constitutionality of a provision in the Private Voluntary Organisations Act that allowed the minister to suspend executive members of a non-governmental organisation without hearing from them first. The court decided that this provision violated s 18(9) of the Constitution, namely the right to a fair hearing in the determination of a person’s civil rights.

 

See also Dube v Chairman, PSC & Anor 1990 (2) ZLR 181 (H); Zimbabwe Teachers Association & Ors v Minister of Education & Culture 1990 (2) ZLR 48 (H).

 

An administrative body to which powers by Parliament to create subsidiary legislation is certainly not permitted to exclude natural justice principles in subordinate legislation.

 

The detailed content of the principles of natural justice is a matter of common sense and intuitive justice.