Transformative constitutionalism and the position of the doctrine of substantive legitimate expectations in reforming administrative law in South Africa.

Abstract
The doctrine of legitimate expectation, initially adopted from English law, has been engrained in South African administrative law for some time, extending the scope of procedural rights afforded to individuals affected by administrative actions. In principle, the doctrine of legitimate expectations comprises two pillars: a procedural legitimate expectation which focuses on the procedure that a public authority will follow before making a decision, and a substantive legitimate expectation which focuses on the actual decision a public authority will make. Of concern, is that the doctrine continues to provide procedural protection to South Africans, yet on the face of it seemingly ignores matters that extend beyond procedural action. The substantive legitimate expectations pillar is not accepted in South African administrative law as grounds for review. The doctrine of substantive legitimate expectations is grounds for judicial review in other countries such as England, Ireland, New Zealand, the European Union and Hong Kong, among others. The evaluation of fairness as the driving force for granting substantive benefits for legitimate expectations in these jurisdictions could provide valuable indicators for incorporating substantive benefits through transformative constitutionalism in South African administrative law. South African courts have been reluctant to pronounce whether substantive legitimate expectations should be part of South African law, largely due to poorly substantiated cases before them as well as the issue of separation of powers. However, judgments such as Administrator, Transvaal v Traub and Others and Meyer v Iscor Pension Fund and Bel Porto School Governing Body v Premier, Western Cape have left the door open for the acceptance of the doctrine of substantive legitimate expectations into South African law in the future. The research highlights the fact that the current legal framework appears to be inadequate in protecting legitimate expectations as a whole. There is scant authoritative judicial precedent setting out whether and how a substantive legitimate expectation will receive substantive protection under the Promotion of Administrative Justice Act (PAJA). With regard to procedural fairness and v the absence of substantive legitimate expectations, it will be argued that PAJA lacks the vision needed for transforming South African administrative law into a dynamic system of law that provides the basis for the meaningful transformation of administrative justice. In addition, the 1996 Constitution completely omitted the term "legitimate expectation" from Chapter 2. The research will show that arguments raised in opposition to the recognition of substantive legitimate expectations mostly remain committed to an overtly conservative approach by the judiciary to administrative decision-making, and to a large degree lack a sincere commitment to constitutional transformation. A further objective of the research is to show that transformative constitutionalism under the new constitutional legal order can assist in addressing the need for the recognition of the substantive legitimate expectations doctrine in South Africa. In this context, values such as the supremacy of the Constitution, the rule of law, fairness, separation of powers, Bill of Rights, democracy, administrative justice and the institutions to uphold them, particularly the independent judiciary, will form an integral part of the study. Finally, by analysing relevant case law and foreign developments pertaining to substantive legitimate expectations, a framework will be provided for the corresponding need in South Africa.
Description
Submitted to the Faculty of Commerce, Administration and Law in fulfilment or partial fulfilment of the requirements for the degree of Doctor of Laws in the Department of Law at the University of Zululand, 2018.
Keywords
Transformative constitutionalism, administrative law
Citation
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