1. The Principle of Legitimate Expectation in Administrative Law:
A Namibian Perspective.
Gaeb, KN & Neemwatya, JK
Abstract
Most legal systems are currently facing many administrative law challenges
because of the growth of administrative power. The range of tasks performed by the
administrators has increased, so has the potential for arbitrary or unfair action as
regards the individual.1 Therefore, the argument stressing the importance of keeping
administrative authorities within their perimeter is transformed in the administrative
context into a claim of practicing different doctrines that debar an administrator from
turning out to be an irrational or arbitrary authority. The doctrine of legitimate
expectation has appeared as a new tool to prevent such arbitrariness or misuses. It is
the ‘latest recruit’ to a long list of concepts fashioned especially by the Western courts
for the review of administrative actions.2
In Namibia, it is true that there is no general Statute like Administrative Justice
Act laying down the minimum procedure which administrative authorities must follow
while exercising decision making power. Nonetheless the Court has always insisted
that administrative authorities must follow a minimum standard of fair procedure
(ensuring legitimate interest of individual).3 This minimum procedure refers to the
concept of natural justice which ultimately protects and ensures legitimate
expectation.4 Focusing on this aspect, this paper examines an introduction of the
* KN Gaeb & JK Neemwatya
Diploma: Paralegal Studies Law (University of Namibia)
Student Research Assistants; Prof. Mundia (Faculty of Law).
1 Thomas R Legitimate Expectations and Proportionality in Administrative Law (2000) p.1.
2 Takwani C. K Lectures on Administrative Law (2006) p. 278.
3 Waterberg Big Hunting Lodge and Another v The Minister of Environment and Tourism Case No. SA
13/2004. The Court stated as follows at page 20: “The ratio of this “doctrine of legitimate expectation”
is consistent with the thinking and principles contained in Article 18 of the Namibian Constitution. The
said doctrine, as well as Article 18, are based on reason and justice in the exercise of administrative
discretion. The doctrine was overtaken by the later incorporation of Article 18 in the Namibian
Constitution. Nevertheless the doctrine can serve a useful purpose in supplying some specifics to the
broad and general norms set out in Article 18 and be used as a tool for the implementation of Article
18. As such it should be applied by our Courts in conjunction with Article 18.”
See also Chairperson of the Immigration Selection Board v Frank and Another 2001 NR 1075 SC: For
the relationship between the doctrine of legitimate expectation and Article 18.
4 Article 18 of the Namibian Constitution Act 1 of 1990. See also Md. Harun Reza Scope of legitimate
expectation doctrine (2011).

2. doctrine, its scope, and its application as a check against arbitrary decisions of the
administrator, furthermore, how this doctrine has been integrated into Namibian case
law with reference to the setting of Namibia's constitutional-administrative law
dispensation.
Description and Scope of the Doctrine
The doctrine of legitimate Expectation is meant to provide aid to persons when
they are not able to substantiate their claims on the grounds provided by law. The
impact of this doctrine, at least in its traditional form, is that if an Administrative
Decision Maker makes a promise or gives an undertaking to exercise power in a
particular way, instantaneously, until that promise or undertaking is formally rescinded
or achieved, those affected by that exercise of the power have a legitimate,
enforceable, expectation that it will be exercised in accordance with the promise or
undertaking.5
The Supreme Court of India had an opportunity of establishing the meaning
and scope of the doctrine in Union of India v Hindustan Development Corp.6
In
explaining the meaning and validity of the doctrine upon it arising, the Court held that:
Time is a threefold present: the present as we experience it, the past as a
present memory and the future as a present expectation. For legal purposes,
the expectation cannot be the same as anticipation. It is different from a wish,
a desire or hope nor can it amount to a claim or demand on the ground of a
right. However earnest and sincere a wish, a desire or a hope maybe and
however confidently one may look to them to be fulfilled…the legitimacy of an
expectation can be inferred inter alia, if it is founded on the sanction of law or
custom or an established procedure followed in a natural and regular
sequence. Such expectation should be justifiably legitimate and protectable.7
Riggs submits that:
….the legitimate expectation doctrine has become a rationale for granting
judicial review of administrative decisions in circumstances where the applicant
had good reason to anticipate (i.e. a legitimate expectation) that the decision
would be favourable or at least that he would be properly consulted before the
adverse decision was made.8
5 Scott, D. & Felix, A. (1997). Principles of Administrative Law. London: Cavendish Publishing Ltd, p.
127.
6 (1993) 3 SCC 499.
7 Ibid.
8 Riggs, R. E. (1988). Legitimate Expectations and Procedural Fairness in English Law. American
Journal on Comparative Law 395, p. 403.

3. Allan argues that the doctrine is simply an instrument for responding to
incidents of unfairness, hence there is no point in further delimiting it according to
some additional principle.9 This must be incorrect, for certainly situations of unfairness
will arise where the doctrine is entirely inapt, and where no expectation will be capable
of being identified. [Emphases original]
Legitimate expectation concerns itself with interests which by themselves would
not invite legal protection. Moules calls this the “special significance” of the concept:
rather than the nature of the interest attracting the application of the rules of natural
justice it is the “legitimate expectation arising out of the conduct of the decision-maker
which provides the basis of the protection”.10 This uniqueness of legitimate
expectations can be seen in the classic case of Ng Yuen Shiu.11 The applicant’s status
as an illegal immigrant meant that he had no free-standing legal right to challenge the
refusal of the Hong Kong authorities to grant him a hearing; only because of a prior
Government assurance that illegal immigrants would have such a hearing was the
Court able to intervene, thereby protecting his legitimate expectation. As Lord Fraser
stated:
The doctrine is capable of including expectations which go beyond enforceable
legal rights.12
The point being made here is that the doctrine has an extraordinary and distinct
role within administrative law. In contrast to other situations where, for instance,
fairness and natural justice are demanded by the very nature of the thing being sought,
the doctrine is also able to intervene where interests have crystallised into protectable
rights by virtue of some action of the decision-maker. This argument lies at the core of
this paper-the role of the doctrine is narrow and specific, unlike the broad principles of
fairness and abuse of power.
9 Allan, T. R. S. (1994). Law, Liberty and Justice: The Legal Foundations of British Constitutionalism.
Oxford: Clarendon Press, p. 197-204. At p. 198 Allan argues for restricting the phrase “Legitimate
Expectation” to cases where the court has decided to fully vindicate an expectation; this use as a
conclusory label would be the extent of its role. Yet conceptually it would remain simply an instrument
of fairness.
10 Elias, P. (1988). “Legitimate Expectation and Judicial Review”. In Jowell J & Oliver D. (Eds). New
Directions in Judicial Review. London: Stevens, p. 41.
11 Att Gen of Hong Kong v Ng Yuen Shiu 1983 (2) A.C. 629.
12 Ibid at p. 636.

4. Historical development of the Doctrine of Legitimate Expectation
Classification of acts into quasi-judicial administrative acts and pure
administrative acts has been rooted in unfairness and abuse of administrative powers
by administrative authorities. According to this grouping, the rules of natural justice
were only applied in respect of quasi-judicial administrative acts.13 This has not only
granted administrators a green light to abuse their powers but also ignored an
individual’s right to a hearing where no legal right has been acquired.14 This has thus
militated against the rule of fairness as it excludes an individual’s legitimate
expectations. Consequently, the Appellate Division in Administrator, Transvaal v
Traub,15 adopted the doctrine of legitimate expectations to guard against abuse of
discretionary powers by those with authorities to exercise it. However, prior to the
Traub case, the doctrine was somehow raised in several cases though it was not
successful. Worth of noting of those cases is the matter of Castel NO v Metal and
Allied Workers Union, the appellate Division noted that:
Even if the "legitimate expectation" approach were to be adopted, there is no
room for its application here . . . nothing had happened before the application
for authority was submitted and nothing happened thereafter which could have
caused the applicant to entertain such an expectation . . . I am by no means
sure that this case would in England be classified as a "legitimate expectation"
case.16
The holding of the court in Castel No case then served as guidelines for a
successful claim for a legitimate expectation not only in the Traub17
case that was
decided a year later, but for any legitimate expectation case that may arise today and
tomorrow. Therefore, it could be argued that the doctrine of legitimate expectation had
been recognised in law in Roman-Dutch law in the Castel No case. It would appear
that the appellant only failed on the question of facts.18
13 Pretoria North Town Council v Ai Electrical Ice Cream Factory (Pty) Ltd 19533 SA 1 (A) 11AC); South
African Defence and Aid Fund v Minister of Justice 1967 1 SA 263 (A) 278C-D. See also Wiechers, M.
(1985). Administrative Law. Cape Town: Juta & Co, Ltd, pp136 & 180.
14 Oberholzer v Padraad van Outjo 19744 SA 870 (A) 875 at -876B; Baxter (1984). Administrative Law.
Durban: Butterwoths, p.573.
15 Administrator Transvaal v Traub 1989 4 SA 731 (A).
16 Castel NO v Metal and Allied Workers Union 1987 4 SA 731 (T).
17 Administrator Transvaal v Traub 1989 4 SA 731 (A).
18 Castel NO v Metal and Allied Workers Union 1987 4 SA 731 (T).

5. Birth of the Doctrine into Namibian Administrative Law
The doctrine was first developed in the English jurisdiction in the case of
Schmidt v Secretary of State of Home Affairs.19
The Home Office, which administered
the Aliens Order, had a policy of according aliens studying at a ‘recognized educational
establishment’ a permit to live in Britain. The plaintiffs had been admitted to study at
the Hubberd College of Scientology and were given permits to live in the country for a
certain period of time. The Home Secretary, because of the concerns about
Scientology, announced that the college would no longer be considered a ‘recognized
educational establishment.’ When the plaintiff applied for the renewal of their permits,
they were refused. They then alleged that this constituted a denial of natural justice,
since they were not given a hearing before this decision was made.
Lord Denning emphasized that, since the plaintiffs were aliens, they were only
entitled to remain in the country “by licence of the Crown.” He held that the duty to
allow representations to be made “depends on whether [the plaintiffs] has some right
or interest, or, some legitimate expectation, of which it would not be fair to deprive him
without hearing what he has to say.”20
The doctrine was adopted into the Namibian jurisdiction via the South African
case of Administrator Transvaal v Traub21
and was hailed into Namibian law in West
Air Aviation (Pty) Ltd & Others v Namibia Airports Co Ltd & Another.22
For purposes
of this article, we find it vital to elaborate more on these two latter cases.
Administrator Transvaal v Traub.23
The respondents, all of whom were medical doctors, had applied to the Director
of Hospital Services to be appointed or reappointed to the position of Senior House
Officer at the Baragwanath Hospital of which the third appellant was the
Superintendent. In accordance with the existing practice, the applicants were
forwarded to the Head of the hospital departments concerned, who submitted them
with favourable recommendation to the Director, whose function it was, under
delegated powers to make such appointments.
19 (1969) 2 Ch. 149 (C.A).
20 Schmidt v Secretary of State for Home Affairs. (Ibid).
21 1989 (4) SA 731 (A).
22 2001 NR 256 (HC).
23 Administrator Transvaal v Traub 1989 (4) SA 731 (A).

6. The applications of each of the respondents were not approved. Moreover, it
was common cause that the applicants were rejected because the respondents
motivated by profound moral considerations and professional disquiet had signed an
incisively critical letter. The letter was thereafter published in the South African Medical
Journal. It severely criticized the Provincial Administrator, and drew attention to the
appalling and totally unacceptable conditions prevailing in the medical wards at
Baragwanath Hospital.
The Court had to decide whether the audi principle only applied to ‘existing
rights’, or whether indeed the impact was wider than just consideration of existing
rights24 because in this case the respondents were not yet vested with ‘existing rights.’
The Court, after tracing the genesis and development of the concept of legitimate
expectation in English law found that the respondents and the rest of the applicants
had expectations owing to the existing practice that fell short of enforceable rights that
required protection.25 The learned Judge went on to observe that in both Australia and
New Zealand the concept of legitimate expectation had been employed by the courts
in the context of judicial review of administrative action.
In this judgment, the Chief Justice accepted that the doctrine of legitimate
expectation should be incorporated into the South African jurisdiction. The Court
therefore found that the applicants had legitimate expectations, once their applications
for the posts of Senior House Officers had been recommended by the departmental
head. The director’s approval of the appointment would therefore follow as a matter of
course. If the director intended some change, he or she should give them a fair hearing
as each particular case required.26
The Chief Justice further recognised that a legitimate expectation might arise
in at least two instances: firstly, where a person enjoys an expectation of a privilege
or a benefit of which it would not be fair to deprive him or her without a fair hearing,
and secondly, in circumstances where the previous conduct of an official has given
rise to an expectation that a particular procedure will be followed before a decision is
made.27
24 Ibid, p. 747 C-D.
25 Ibid, p. 744 D-E.
26 Ibid, p. 761H-762D.
27 Ibid, p. 758D-F.

7. West Air Aviation (Pty) Ltd & Others v Namibia Airports & Another.28
The respondent sought to enhance both airport security and ramp safety. To
achieve this it decided to revise its terms and conditions and policy without informing
the applicants. Subsequently, it disconnected or relieved the applicants of its duties
and services to do ground handling because it thought West air Aviation was
compromising airport security and ramp safety. It appointed another company to take
over the services of ground handling.
The applicants then contended that it was an established part of their respective
businesses to carry on ground handling services, as such they had a legitimate
expectation as in the case of the first respondent that they would be permitted to
continue what was an established regular practice. In this regard they further
contended that there was an obligation on the first respondent to act fairly towards the
applicants when decided or revising its conditions and policy. Respectively the
applicants submitted that they were at least entitled to an opportunity to make
representations before the conditions and the policy could be changed, they therefore
sought an order that the first respondent’s decision should be reviewed and set aside.
Hannah, J the then Judge of the High Court, cited with approval the decision of
Administrator Transvaal v Traub and highlighted that legitimate expectation arise
despite a person claiming some benefit or privilege has no legal right to it, as a matter
of private law. He nonetheless may have a legitimate expectation of receiving the
benefit or privilege. The Court usually protects legitimate expectation by judicial review
as a matter of public law. In addition, legitimate or reasonable expectation was found
to emanate 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.
He further extracted a few extracts of particular significance as follows:
…the particular manifestation of the duty to act fairly which is presently involved
is that of the recent evolution of our administrative law which may enable an
aggrieved party to evoke judicial review if he show that he had a ‘legitimate
expectation’….the principle may now said to be firmly entrenched in this
branch of the law. As the case show, the practice is closely connected with
‘a right to be heard’…29
(emphasis added).
28 2001 NR 256 (HC).
29 West Air Aviation (Pty) Ltd v Namibia Airport Co Ltd 2001 NR 256 at 263-264.

8. There has been a number of other Namibian decisions that have followed this
ruling. In so doing they likewise have also highlighted that legitimate expectation is
closely linked to the right to be heard, thus anticipating procedural fairness. This was
the case in Open Learning Group of Namibia Finance v Permanent Secretary of the
Ministry of Finance & Others,30
were Damaseb JP had the following to say regarding
legitimate expectation:
Where a public authority so acts as to create or bestow a benefit or concession
in circumstances where it is under no statutory duty to do so, those enjoying
such benefit acquires a legitimate expectation to be heard before any
action adverse to the enjoyment of that benefit is taken. Put simply, the
public authority granting the benefit must respect the dictates of the
Constitution; it must act fairly and reasonably.31
Damaseb JP justifies his assertion in providing that:
The reason is simple: relying on such benefit the grantee may organise his or
her affairs in reliance on such benefit or concession – affairs which may be
negatively affected by a summary withdrawal of the benefit or concession.32
In applying this principle to the facts of the case, Damaseb JP held that:
The applicant, relying on the benefit of the deduction code, organised its affairs
to its financial advantage and that a potential disruption would ensue in the
wake of its withdrawal is amply demonstrated on the papers. As clear from the
agreement, the applicant is also required to invest resources in a ‘social
upliftment programme’. It therefore assumed a financial risk entering into the
agreement. The applicant therefore had a legitimate expectation to be heard,
assuming the withdrawal of the code constitutes administrative action.33
Application of Substantive Legitimate Expectation through implication in the
Namibian Context
In the case of Minister of Health and Social Services v Lisse,34 the plaintiff, a
specialist obstetrician and gynaecologist was previously employed by the defendant
as a medical officer from 1989 to 2003, and later as a specialist. He resigned in 2003
and commenced his private practice in January 2004. He then applied to the
defendant during 2004 for permission to engage in the treatment of patients and to
perform medical procedures at State hospitals under the jurisdiction of the defendant
30 Unreported judgment of the Namibian High Court, Case No.: (P) A96/2005. Judgment delivered on
10 January 2006.
31 At page 38, para 94.
32 Ibid.
33 Ibid.
34 CASE NO. SA 23/2004

9. in terms of section 17 of the Hospitals and Health Facilities Act, 36 of 1994 (“the Act”).
On 5 April 2004, the defendant refused the application of the plaintiff. However
between January and April 2004, before his application was declined, he consulted
with state patients, particularly those on the Public Service Employer Medical Aid
Scheme (“PSEMAS”) in anticipation of being granted leave to engage in the treatment
of patients and to perform medical procedures at State Hospitals.
Issues:
- The reasons for the Minister’s decision were only supplied subsequent to her
final decision and only when requested to do so by Dr Lisse and/or his legal
representatives.
- Minister relied on complaints from staff, fellow doctors and other people but
never presented an opportunity for Dr Lisseto refute such statements or address them
- The minister in making his decision failed to consult senior staff at the hospital
The Court Held that the Minister did not afford Dr Lisse a proper hearing before
decision was taken; she failed to appreciate Dr Lisse right to his legitimate expectation
to a fair procedure, therefore the decision taken was unfair, unreasonable and in
conflict with Article 18. The Courts further decided not to send the application back to
be reviewed by the Minister as the same decision would be anticipated and therefore
be unjust. The court ordered the Minister to issue the acquired authority to practise.
So it is seen here that the core of substantive legitimate expectation is then realised.
The promise/practice by the public authority which is in source of the applicant’s
procedural rights and in a sense protection can be seen as substantive because the
applicant being Dr Lisse receives what he was led to expect. It is through implication
that substantive legitimate expectation was applied, on the basis of the judgement
granted.
In re: Van Rooyen v University of Namibia35
The matter was based on the fact that Van Rooyen was awarded Full Professor
rate and that the Vice Chancellor later send him a letter stating that there was an error
done on awarding him such Full Professorship which was signed by the Pro-Vice
Chancellor Hangula on behalf of the Vice Chancellor Peter Katjavivi. The VC stated
35 Van Rooyen v University of Namibia 2004 NR 150 (LC)

10. that it should have been that of Associate Professor. Van Rooyen stated that if he is
deprived of his Full Professor title which he had been using and which the Dean Prof
Du Pisanni his employee congratulated him about will affect him financially. The court
under the Judgement of Damaseb JP stated that the University’s decision to alter Van
Rooyen status from full professor to that of associate professor constitutes a unilateral
alteration of the Van Rooyen conditions of employment. The University is therefore
ordered to restore the status quo ante with immediate effect.
This meant that the benefit which was constituted upon Van Rooyen which is a
substantive legitimate expectation as Van Rooyen showed that profession of such
level from on tier to another upgrading tow positions at once is a practice which has
been taking form for a long period of time such as a lecture to being promoted to
Associate Professor.
In the case of Witvlei Meat (Pty) Ltd v The Cabinet of the Republicof Namibia,36
the courts had an application to grant relief sought by the applicant. The applicant had
brought forth one of the grounds of Substantive legitimate expectation. The court held
that it would not need to focus or consider on this concept as there were others of
more importance/consideration in the matter. We can see here that the courts are not
foreign to the doctrine of substantive legitimate expectation and could therefore be
expressly in applied in the courts.
Article 18 does not restrict the duty of Administrative bodies or administrative
officials to act fairly and reasonably only in regard to procedure. It must be inferred
that this requirement also applies to the substance of the decision. This inference is
strengthened by the last part of the article, which provides that persons aggrieved by
the exercise of such acts and decisions, shall have the right to seek redress before a
competent Court or Tribunal".37
36 (A 07-2014) [2014] NAHCMD 115 (31 March 2014) (1)
37 This view has been laid down in my decision in the High Court in Aonin Fishing (Pty) Ltd v Minister
of Fisheries and Marine Resources 1998 NR 147 HC and confirmed by this Court in:
The Chairman of the Immigration Selection Board v Frank , 2001 NR 107 SC 109E-110B; 116F-121G;
170F-176I
Government of the Republic of Namibia v Sikunda 2002 NR 2003 SC at 226G-229F. See also High
Court decision 2001 NR 181.
Mostert v Minister of Justice, 2003 NR 11 at 22J-28H.
Cronje v Municipal Council of Mariental, 2004 (4) NLLP 129 at 175-182.

11. What article 18 of the Namibian Constitution does is that it does not confine
itself to "procedurally fair administrative action", but provided generally that –
"Administrative bodies and administrative officials shall act fairly and reasonably …
and person aggrieved by the exercise of such acts and decisions, shall have the right
to seek redress before a competent Court".
The general principle of a duty to act fairly and reasonably, supplements the
common law and any relevant statute law, but obviously any common law or statute
law in conflict with this provision, will be unconstitutional.
Article 18 does not talk of any person’s legitimate expectation.38 Thus, its
purpose could not be fully attained with invoking the doctrine of legitimate expectation.
One of the rights provided in Article 18 is the right to a hearing. This is the essence of
procedural legitimate expectation which is fairly part of our law. In Frank case,39 the
Supreme court noted that the doctrine of legitimate expectation may entitles a person
to a right of hearing even where such person would otherwise not have acquired such
right. Therefore legitimate expectation may, on itself, amounts to another right though
short of a legal right.
As alluded to earlier, certain requirements must be met. In Uffindell case,40
the court held that a legitimate expectation only arises where there was an
established practice of consultation, or where a promise or representation has
been made that consultation will be made. The court held that the respondent
failed to adduce evidence of the practice of consultation.
Conclusion
The developed concept of legitimate expectation has gained sufficient
importance in Administrative law.41 The doctrine has been developed to check and
to control the exercise of powers by the administrative authorities and thereby it
aims at the main aspect of this branch of public law. The substance of the doctrine
is implied commitments without hampering express policies. The doctrine is
Bel Porto School Governing Body & Others v Premier Western Cape & Another 2002 (3) SA 265 CC at
291C –295H; 300C-316E.
38 ibid.
39 Chairperson of the Immigration Selection Board v Frank and Another 2001 NR 107 (SCA).
40 Arthur Fredrick Uffindell t/a Aloe Hunting Safaris v Government of Namibia And 4 Others case NO.
(P) A. 141/2000.
41 Massey,I. P. (2001). AdministrativeLaw. Eastern Book Company, 5th Edn, p. 293.

12. invoked to enforce regularity, predictability and certainty in government dealings.
It is the tool of protecting individual citizens against the administrative actions
subject to the satisfaction of the court as to the existence of the factors necessary
to justify the expectation as legitimate. For this reason, the court should exercise
self-restraint and restrict the claim of denial of legitimate expectation to the legal
limitations.
The utilisation of the doctrine of legitimate expectations is two-fold. On the
one hand, it assists in determining the circumstances in which a duty to act fairly
arises. A public body that, through its conduct, has created a legitimate
expectation on the part of the person who is subject to its decision-maki ng
powers, must act fairly towards that person. Therefore, a person who has a
legitimate expectation has a stronger claim to fair treatment than a person whose
interests may be affected by an administrative decision, but who does not have
any legitimate expectation. On the other hand, the doctrine assists in defining the
content of the duty to act fairly. A person who has a legitimate expectation is
entitled to a higher degree of fairness than a person who can claim only that the
exercise of statutory decision-making powers affects his interests adversely.
Accordingly, the application of the doctrine by the Courts is not an end. The
doctrine is a tool to be used in determining whether the decision-maker owes a
duty of fairness to the person concerned and what that duty entails.42
The doctrine of legitimate expectation in Namibia, is still in an evolutionary
stage; but one thing is certain that it managed to have its position entrenched in
the same line with other contemporary world practicing this doctrine successfully.
But this is not the end. To continue with this success, the judges are to play the
lead role by being well-resourced with different facets of this doctrine. As there
are no fixed rules to express this principle, the judges should be more careful in
deciding a claim based on legitimate expectation so that nobody can use the
inherent uncertainty of this principle. At the same time, a constant comparati ve
analysis with other countries and to import new ideas from them will be of use for
the smooth development of legitimate expectations in Namibian law.
42 Pretorius,D. M. (2000). “Ten Years After Traub”. The South African Law Journal, vol. 117,issue.3: p, 547.