Doctrine of legitimate expectation

for judicial review, it applies the principles of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a long-standing practice or keeping a promise. The idea of legitimate expectation has received sufficient mention both academically and in case law so as to effectively merit being referred to as the doctrine of legitimate expectation.

Legitimate expectation has been said to be a new category of fairness. It has been reiterated that a legitimate expectation is not the same thing as anticipation. It is distinct and different from a desire and hope. It is based on a right. It is grounded in the rule of law as requiring regularity, predictability and certainty in the Government’ s dealings with the public and the doctrine of legitimate expectation operates both in procedural and substantive matters.
The doctrine of “legitimate expectation” has its genesis in the field of administrative law. The government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse or discretion. The policy statements cannot be disregarded unfairly or applied selectively.

Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of “legitimate expectation” was evolved which today has become a source of substantive as well as procedural rights.
However, claims based on “legitimate expectation” have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel.

In this article, I will look at the doctrine as it applies to fixed term employment contracts. Section 12B(3) (b) of the Labour Act Chapter 28:01 defines it to be dismissal if, on termination of an employment contract of fixed duration, the employee – (i) had a legitimate expectation of being re-engaged; and (ii) another person was engaged instead of the employee.

Many employers employ workers on short- fixed term contracts for three or six months or more and then renew them again a few times, then upon the expiry of the last renewal, inform the employee that the contract won’t be renewed again.
The question is did the employee have a legitimate expectation that the fixed term contract will be renewed again? It is for the employee to prove that she/he had a reasonable expectation of renewal.

The repeated renewal of fixed term contracts will count in the favour of the employee, but is not conclusive proof of a legitimate expectation.
Throughout the years, principles have stemmed from judgments in our various courts, for example the case of South African Veterinary Council v Szymanski (2003) (4) SA 42 (SCA) and National Director of Public Prosecutions v Phillips 2002 (1) BCLR 41 (W).

Below are some of the principles that came out to justify legitimate expectation:

The representation underlying the expectation must be clear, unambiguous and not subject to qualification;

The expectation must be reasonable;

The representation must have been induced by the decision-maker; and

The representation must be one that it was competent for the decision-maker to make without which the reliance cannot be legitimate.

It is the employee who bears the onus to establish that they had a reasonable expectation that the contract will be renewed as was the case with SA Rugby Players Association & Others v SA Rugby (Pty) Ltd & others (2008) 29 ILJ 2218 (LAC). In this case the players based their claim that they had a reasonable expectation of renewal based on their individual performances during 2003 and on certain remarks of the then coach, Strauli.

In the CCMA(Commission for Conciliation, Mediation and Arbitration), it was found that the non-renewal of all three players contracts constituted dismissals in terms of section 186(1)(b). However, the Labour Court found that Bands and Bezuidenhout had not been dismissed because they had no reasonable expectation of renewal, but that Matfield had such an expectation and was therefore dismissed.

The Labour Appeal Court found that because the fixed term contracts contained clear statements that they should not expect renewal, it was required of them to present more than feeble evidence or just saying that they had a legitimate expectation.
All the players’ contracts were for a specific event – the World Cup, which had come and gone. Therefore, the performance of the players could do no more than place them in a better position when contracts for the following year were concluded.

Should they have been selected again, it would have been on materially different contracts. The Appeal Court confirmed the Labour Court’s finding that Bands and Bezuidenhout were not dismissed.
With regards to Matfield the Appeal Court said that the failure to communicate an intention not to renew cannot mean that the contract will be renewed when the contract itself does not provide for renewal.

Furthermore, because the coach lacked authority to offer contracts, his assurances could also not be relied upon and the Labour Appeal Court came to the conclusion that Matfield therefore did not have a legitimate expectation of renewal and therefore was not dismissed when the contract was not renewed.

The principles for the SA Rugby case are:

The person making a promise of renewal must have the authority to offer contracts/ renew contracts and to bind the employer by its decisions;

The employee bears the onus to prove the legitimate expectation; and

Substantiated evidence must be provided of the legitimate expectation.

The reason for entering into a fixed term contract is also relevant in establishing whether a reasonable expectation for renewal exists.
For example, where an employer enters into a fixed term contract to replace an employee who is on leave, for maternity leave there could never be a legitimate expectation of renewal. But where a fixed term contract is entered into subject to the availability of continued funding, there can be a reasonable expectation of renewal as long as the funding continues.

However, if funding ceases and the employer does not give you a new contract and does not replace your position with someone else, then there cannot be any claim for legitimate expectation.
The following cases can also shed light regarding legitimate expectation. In the SA Bank of Athens Ltd v Cellier NO & Others (2009) 30 ILJ 197 (LC) it was found that the mere fact that the fixed term contract made provision for the negotiating of the possible renewal of the contract, does not in itself mean that there is a reasonable expectation for renewal. In terms of Nobubele v Kujawa NO & another (2008) 29 ILJ 2986 (LC), there cannot be a legitimate expectation of renewal, where an employee, like in this case, had been suspended on suspicion of misconduct before the expiry of her fixed term contract. Employers are therefore advised to manage this area very well. If the employer conducts itself in a manner that, on its objective facts, cause the employee to have a legitimate expectation that her employment would continue and that expectation is not met, it could amount to a dismissal in law.

The principle requires a subjective expectation on the part of the employee that the contract would be renewed or extended and objective factors that support the expectation. Employers should be careful of entering into fixed term contracts when there is not a specific reason for doing so and then rolling them over.

However, if there is genuine reason, for example , aligning contracts to funding or project time frame or lifespan, then there is no problem, as long as the minimum requirements in terms of the law are observed.

Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice.