Abstract
In this paper I briefly discuss the development of the doctrine of legitimate expectation in South African law, which had left the way open for the Constitutional Court to develop a doctrine of substantive legitimate expectation in KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal (KZN JLC). I then discuss the court's refusal to develop the doctrine in KZN JLC and analyse the approach adopted instead, which saw the court invoke rationality review to create a new legal mechanism for the enforcement of a unilateral, publicly promulgated promise by government to pay on broad public law grounds. I do so from the perspective of whether or not this creative approach amounted to the development of the doctrine by another name. I consider the implications of the creative approach in KZN JLC for the development of the doctrine of substantive legitimate expectation under administrative law in future. Finally I discuss how the creation of a new legal mechanism to enforce publicly promulgated promises to pay was "subversive of PAJA and the scheme in s 33 of the Constitution".
Highlights
The MEC for Education in KwaZulu-Natal had granted a subsidy under section 48 of the South African Schools Act 84 of 1996 for 2009/2010 to independent schools in the province, represented by the applicant
In this paper I discuss the new legal mechanism created to enforce a publicly promulgated promise to pay created in KZN JLC, as well as the impact of this mechanism on the future scope of the doctrine of substantive legitimate expectation
Under PAJA when they can rely on rationality review under KZN JLC as precedent to enforce a publicly promulgated promise to pay that has fallen due
Summary
KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal concerned the retraction of a promise to pay subsidies to independent schools. The MEC for Education in KwaZulu-Natal had granted a subsidy under section 48 of the South African Schools Act 84 of 1996 (the Schools Act) for 2009/2010 to independent schools in the province, represented by the applicant. The court created this new mechanism to afford the schools substantive protection in respect of conduct bearing all the hallmarks of administrative action without reliance on the Promotion of Administrative Justice Act 3 of 2000 (PAJA).9 It did so through the enforcement of a publicly promulgated promise to pay on the grounds of reliance, accountability and rationality. In this paper I discuss the new legal mechanism created to enforce a publicly promulgated promise to pay created in KZN JLC, as well as the impact of this mechanism on the future scope of the doctrine of substantive legitimate expectation. The majority in KZN JLC makes an intriguing choice – the adoption of broad public law values as the basis to enforce a promise to pay, rather than the doctrine of legitimate expectation, in circumstances where neither cause of action was pleaded, and only the latter was argued (and only by the amicus curiae) as a basis for the remedy granted. PAJA and the scheme in s 33 of [the Constitution of the Republic of South Africa, 1996]".11
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