Administrator, Transvaal, and Others v Traub and Others

• Jurisdiction: South Africa
• Judgment Date: 24 August 1989
• Citation: 1989 (4) SA 731 (A)

Administrator, Transvaal, and Others v Traub and Others
1989 (4) SA 731 (A)

1989 (4) SA p731

Citation	1989 (4) SA 731 (A)
Court	Appellate Division
Judge	Corbett CJ, Hoexter JA, E M Grosskopf JA, Kumleben JA, F H Grosskopf JA
Heard	May 9, 1989
Judgment	August 24, 1989

Flynote : Sleutelwoorde B

Maxims — Audi alteram partem — Legitimate expectation doctrine — Need to extend the scope of judicial review to include cases of legitimate expectation found to exist in Republic — Adherence to the formula that C audi alteram partem principle applicable only to decisions affecting a person in his liberty, property or existing rights would fail to provide a legal remedy in cases where there was a need for one — Doctrine to be carefully handled — Courts, in working out when doctrine applicable, will from time to time need to apply the curb in order to maintain a D reasonable balance between protecting the individual from decisions unfairly arrived at and avoiding undue judicial interference in the administration of affairs by public authorities — Classification of decisions into quasi-judicial/purely administrative not of material assistance in deciding whether the Court should come to the aid of a E person or not — Scope of doctrine of legitimate expectation — Not well defined but sometimes expressed in terms of some substantive benefit, advantage or privilege which the person concerned could reasonably expect to acquire or retain and which it would be unfair to deny without a hearing — Doctrine expressed at other times in terms of a legitimate F expectation to be accorded a hearing before some decision adverse to the person concerned is taken.

Provincial government — Employees — Appointment and tenure — Appointment under s 10(1) of Public Service Act 111 of 1984 — Refusal of appointment or reappointment of certain qualified medical G practitioners to posts at provincial hospitals

1989 (4) SA p732

A Provincial director of hospital services rejected their applications solely because of their having been parties to a published letter severely criticising Provincial Administration's attitude to conditions in the hospital — Such medical practitioners considered to be unsuitable for the post applied for by reason of their aforementioned B actions — Medical advisory committee of hospital requesting director to reconsider decision — Such not considered to be compliance with audi alteram partem principle as hearing generally required to be given before decision taken, nothing to indicate that committee authorised by medical practitioners concerned to make representations on their behalf, and director not having told medical practitioners the reason for the C contemplated rejection of their applications as they would have been entitled to at a fair hearing — Medical practitioners, however, not having been affected in their liberty, property or existing rights by director's decision — But, in view of the fact that such appointments D were essential ones in the ladder of professional progress in hospital hierarchy and the refusal to make the appointment would be a set-back to professional career of a doctor, and in view of long-standing practice that such applications for appointment carrying the recommendation of the departmental head of the hospital had invariably, as a matter of E formality, been granted by the director, such applicants had a legitimate expectation in the circumstances that the applications would be granted and/or that a departure from past practice would not occur without a fair hearing being given prior to such decision — As director had not given such applicants a hearing, his decision was fatally flawed and accordingly invalid. F Provincial government — Legal proceedings against — Written notice of in terms of s 34(2) of Public Service Act 111 of 1984 — Refusal of application for appointment to medical post in provincial hospital — Legal proceedings to set such refusal aside — Section 34(2) to be restrictively construed and not extended beyond its expressed limits — G Cause of action in application the failure to give a fair hearing before refusal of applications — Obligation to afford a fair hearing derived from common law and not an obligation imposed by the Act — Legal proceedings without notice not blocked by s 34(2) of the Act.

Headnote : Kopnota

H The maxim audi alteram partem expresses a principle of natural justice which is part of our law. The classic formulations of the principle state that when a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or property or existing rights, the latter has a right to be heard before the decision is taken (or in some instances thereafter), unless the statute expressly or by implication indicates the contrary. However, I since about 1950, as a result of a series of judicial decisions in the House of Lords and in the Court of Appeal in England, there has been 'a dramatic and, indeed, radical change in the scope of judicial review', which has been described 'by no means critically, as an upsurge of judicial activism'. One aspect of this change in the scope of judicial review was the evolution of the legitimate expectation principle. And it was evolved in the social context of the age in order to make the grounds of interference with the decisions of public authorities which adversely affect individuals co-extensive with notions of what is fair J and what is not fair in the particular circumstances of the case.

1989 (4) SA p733

A It has also been found necessary, or at any rate desirable, to extend the scope of judicial review to include cases of legitimate expectation in Australia and New Zealand. There is a similar need in this country. There are many cases which one can visualise in this sphere where an adherence to the formula of 'liberty, property and existing rights' would fail to provide a legal remedy when the facts cry out for one; and would result in a decision which appeared to have been arrived at by a procedure which was clearly unfair being immune from review. The law should in such cases be made to reach out and come to the aid of persons B prejudicially affected. At the same time, whereas the concepts of liberty, property and existing rights are reasonably well defined, that of legitimate expectation is not. Like public policy, unless carefully handled it could become an unruly horse. And in working out, incrementally, on the facts of each case, where the doctrine of legitimate expectation applies and where it does not, the Courts will, no doubt, bear in mind the need from time to time to apply the curb. A C reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in their administration. Traditionally, the enquiry has been limited in such cases to the prejudicial effect upon the individual's liberty, property and existing rights, but under modern circumstances it is appropriate to include also his legitimate expectations. The quasi-judicial/purely administrative classification of decisions is not of any material assistance in solving the problem of D whether the Court should come to the aid of a person or not.

The legitimate expectation doctrine in England is sometimes expressed in the cases decided there in terms of some substantive benefit or advantage or privilege which the person concerned could reasonably expect to acquire or retain and which it would be unfair to deny such person without prior consultation or a prior hearing; and at other times, in terms of a legitimate expectation to be accorded a hearing E before some decision adverse to the person concerned is taken. In practice the two forms of expectation may be interrelated and even tend to merge. Thus, the person concerned may have a legitimate expectation that the decision by the public authority will be favourable, or at least that before an adverse decision is taken he will be given a fair hearing.

The respondents, all of whom were medical doctors, had applied to the F second appellant (the Director of Hospital Services) (the director) to be appointed or reappointed to the position of senior house officer ('SHO') at the B hospital of which the third appellant was the superintendent. In accordance with the existing practice, the applications were forwarded to the head of the hospital departments concerned, who submitted them with favourable recommendations to the director, whose function it was, under delegated powers, to make such appointments. The power of the director to make the appointments was governed by s 10(1) of the Public Service Act 111 of 1984. The G applications of each of the respondents were not approved and it was common cause that the applications were rejected because the respondents had signed a letter published in a medical journal in which the Provincial Administration was severely criticised for its attitude towards the conditions in the medical wards at the B hospital. The respondents thereafter successfully applied to a Local Division for an order setting aside the director's decision. The respondents alleged inter alia that in the past it had long been the practice for the H director to approve the appointment of persons recommended by the head of the department concerned at the hospital and that the practice was part of the well-established system of professional progress whereby medical students were placed into internship in the hospital concerned, whereafter they would progress to senior house officer, medical officer or registrar. These facts were not disputed by the appellants. In an appeal against the decision of the Local Division, the appellants I contended (...