A future for the doctrine of substantive legitimate expectation? The implications of Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu Natal

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".