Natural Justice

- Connotes the rights and requirements for procedural fairness

- Locus classicus case is that of Ridge v Baldwin

Ridge v Baldwin

- Any decision making process which affects the rights of subjects must comply with the rights
of natural justice – which is also now commonly known as the duty to act fairly.
- The content of the duty to act fairly may vary depending on the context.
- The duty to act fairly (natural justice) comprises of two main rules – The audi alteram partem
rule(right to a fair hearing) and the nemo judex in causa sua rule(Rule against bias).

1. Right to be heard

George Arbi

The principle of audi alteram partem is part of the bedrock of any civilised legal
system. The maxim expresses a principle of natural justice which holds that when
a statute or any other form of legislation empowers public officials to give a
decision prejudicially affecting an individual in his A liberty, property or existing
rights such an individual has a right to be heard (and to be apprised of the
threat to his right) before a decision is taken, unless of course, the legislation
expressly or by implication, indicates the contrary.

The principle of audi alter partem is one of the twin corner stones of natural
justice and is of venerable antiquity. As is pointed out by Professor Baxter in his
excellent work on Administrative Law (Juta & Co, 1984), two English judges have
ascribed the observance of the maxim to God himself. The principle was
recognised in ancient Egypt and Greece, in Germanic and African tribal
custom, the Scriptures and, implicitly in Magna Carta. Thus, the following
Instruction of Ptahhhotep from the Sixth Dynasty (2300 - 2150 BC.) is F cited by
Professor Baxter:
"If you are a man who leads, listen calmly to the speech of one who
pleads, Don't stop him from purging his body of that which he planned to tell. A
man in distress wants to pour out his heart more than that his case be won.
About him who stops a plea one says: 'Why does he reject it ?' Not all one
pleads for can be granted, but a good hearing soothes the heart."

Of course, the right to be heard does not imply the necessity that all the formal
requirements of proceedings before a court of law should be applied.
Obviously some flexibility is required in the process of administrative conduct.
The statement by Lord Loreburn L.C. in the case of Board of Education v. Rice
[1911] A.C. 179 at p. 182 has been widely adopted:
"In the present instance, as in many others, what comes for determination
is sometimes a matter to be settled by discretion, involving no law. It will,
Of course, there is a wide spectrum of administrative decisions which might
prejudicially affect an F individual in his liberty or affect his existing rights.

Elements (As discussed in class)

- Oral Hearing( Not an essential reqirement)
- Right to make submissions(oral or written)
- Right to Notice – must be effective
- Right to Know Opposing case

Sechele

"First, I think that the person accused should know the nature of the accusation
made; secondly, that he should be given an opportunity to state his case; and
thirdly, of course, that the tribunal should act in good faith."
See also the instructive judgment of the Privy Council in Ceylon University v.
Fernando [1960] 1 W.L.R. 223. In G the course of the judgment, Lord Jenkins
discussed several decisions on the subject. He quoted inter alia a passage from
the judgment of the Privy Council in De Verteuil v. Knaggs [1918] A.C. 557 at p.
560 which I respectfully reproduce:
"Their Lordships are of opinion that in making such an inquiry there is, apart
from special circumstances, a duty of giving to any person against whom the
complaint is made a fair opportunity to make any relevant statement which he
may desire to bring forward and a fair opportunity to correct or controvert any
relevant statement brought forward to his prejudice."
But assuming that the rules of natural justice are applicable in this case, does the
evidence show that they were not observed? It is well established that whether
the requirements of natural justice have been satisfied must depend on the
facts and circumstances of the particular case. And further it is not in every case
that it is necessary to hold a formal inquiry or hear witnesses. This principle was
stated in the English Court of Appeal by Tucker L.J. in Russell v. Duke of Norfolk
[1949] 1 All E.R. 109 at p. 118 e in the following terms:
"The requirements of natural justice must depend on the circumstances of
the case, the nature of the inquiry, the rules under which the tribunal is acting,
the subject- matter that is being dealt with, and so forth."
And in Winter v. Administrator-in-Executive Committee 1973 (1) S.A. 873 at p. 889
d (a decision of the South E African Appellate Division), Ogilvie Thompson C.J.
said inter alia in delivering the judgment of the court:
"Thirdly, where it does apply, the maxim does not necessarily connote an
enquiry or even an oral hearing; the opportunity to submit F written represen-
tations may, depending upon the particular terms of th-e statute in issue, suffice .
. ."

Masebola

The principles of natural justice which have been recognised by the South
African Courts require a domestic tribunal to adopt a procedure which would
afford the person charged a proper hearing by the tribunal, and a proper
opportunity of producing his evidence and of stating his contentions, and of
correcting or contradicting B any prejudicial statements or allegations made
against him; to listen fairly to both sides and to observe the principles of fair-
play; to discharge its duties honestly and impartially; and to act in good faith
(see Turner v. Jockey Club of South Africa 1974 (3) SA 633 (A) at 646 and the
cases there cited).

Bhc v. Rabana
As to whether the appellant's failure to afford the respondent an oral hearing
offended the audi alteram partem principle
Held: (1) it was not necessary to determine whether the appellant was a public
authority and met all the criteria in relation to such a body set out in National
Development Bank v. Thothe [1994] B.L.R. 98, C.A. as the audi alteram partem
principle did not require the holding of an oral hearing such as contended for by
the respondent. The body concerned was entitled to determine its own
procedure provided it complied with the applicable contractual provisions.
Heatherdale Farms (Pty.) Ltd. v. Deputy Minister of Agriculture 1980 (3) S.A. 476
(T); Herring v. Templeman and Others [1973] 3 All E.R. 569 (C.A.), followed.
National Development Bank v. Thothe [1994] B.L.R. 98, C.A. referred.
(2) The respondent had been afforded every opportunity of meeting the
charges, which were clear and explicit, and accordingly there had been no
failure on the part of the appellant to observe the rules of natural justice.

Legitimate Expectation

Legitimate, or reasonable, expectation may arise either from an express promise

given on behalf of a public authority or from the existence of a regular practice
which the claimant can reasonably expect to continue.

Botswana Railways Workers Union

(3) The concept of a legitimate expectation, on which counsel for the applicant
sought to base his argument, has its origins in a determination to control and
bring within judicial review arbitrary and unfair decisions of administrative public
authorities. This has resulted in an extension of the doctrine of audi alteram
partem which is B an important aspect of the duty to act fairly. A person whose
claim falls short of a legal right may nevertheless be entitled to some kind of a
hearing if the interest at stake rises to the level of "legitimate expectations" of
which it would not be fair to deprive him without hearing what he has to say.
Dictum of Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs
[1969] 1 All E.R. 904, C.A. at p. 909 and Administrator, Transvaal v. Traub 1989 (4)
S.A. 731 applied.
(4) Legitimate expectation arises either from an express promise given on behalf
of a public authority or from the existence of a regular practice which a
claimant can reasonably expect to continue. If the employees of the Railways
Organisation had a legitimate expectation of houses at sub-economic rentals,
they were entitled to be heard and to be treated fairly. This does not mean that
their consent to have the rentals increased, had first to be obtained. An
application of the doctrine of legitimate expectation does not go that far.
Council of Civil Service Unions and Others v. Minister for the Civil Service [1984] 3
All E.R. 935, H.L. at p. 944 applied.

Limpopo Safaris
The notion of legitimate expectation is now well founded in our laws, see
Students' Representative Council v. University of Botswana and Others [1989]
B.L.R. 396, C.A. It is a doctrine that has developed in addition to the well known
principles of natural justice that were applicable where somebody's liberty,
property and existing B rights are affected in an unfair manner. See Minister of
Local Government & Tenure v. Inkosinathi Property Developers (Pty.) Ltd. 1992
(2) S.A. 234; Administrator, Transvaal, & Others v. Traub and Others 1989 (4) S.A.
731. It is invoked by a litigant for his protection by the court, where he
legitimately or reasonably expected to be treated in a certain established or
promised manner but was not so treated without first being given the C
opportunity to be heard in the matter. The legitimate interest principle was first
fully recognised in the judgment of Lord Denning in the case of Schmidt v.
Secretary for State for Home Affairs [1969] 1 All E.R. 904 at 909. It has now been
regularly applied to a variety of situations by the House of Lords. It was for
instance applied in the case of Attorney-General of Hong Kong v. Ng Yuen Shiu
[1983] 2 All E.R. 346. In that case Lord Fraser of Tullybelton D speaking of the
doctrine, noted its origin in the judgment of Lord Denning M.R. in Schmidt's case.
He said the phrase "legitimate expectation" was in many ways "an apt one to
express the underlying principle" and rejected the notion suggested in the
Australian case of Salemi v. Minister for Immigration and Ethnic Affairs (No. 2)
(1977) 14 A.L.R. 1 that "legitimate" in the phrase expressed the concept of
entitlement or recognition by law. His E Lordship said that "legitimate" in that
expression falls to be read as meaning "reasonable". Accordingly, "legitimate
expectations" in this context are capable of including expectations which go
beyond enforceable legal rights, provided they have some reasonable basis. As
to the nature of interest that can be protected under that F principle, Lord
Fraser approved the following which he quoted from the judgment of Lord
Diplock in O'Reilly v. Mackman [1982] 3 All E.R. 1124 at 1126-7 -
"It is not, and it could not be, contended that the decision of the board
awarding him forfeiture of remission had infringed or G threatened to infringe
any right of the appellant derived from private law, whether a common law
right or one created by a statute. Under the Prison Rules remission of sentence is
not a matter of right but of indulgence. So far as private law is concerned all
that each appellant had was a legitimate expectation, based on his knowledge
of what is the general practice, that he would be granted the maximum
remission, permitted by r. 5(2); if by that time no disciplinary award of H
forfeiture of remission had been made against him. So the second thing to be
noted is that none of the appellants had any remedy in private law. In public
law, as distinguished from private law, however, such legitimate expectation
gave to each appellant a sufficient interest to challenge the legality of the
adverse disciplinary award made against him by the board on the ground that
in one way or another the board in reaching its decision had acted out with the
powers conferred on it by the legislation under which it A was acting; and such
grounds would include the board's failure to observe the rules of natural justice:
which means no more than to act fairly towards him in carrying out their
decision-making process."
In the leading case of: The Administrator of the Transvaal and Others v. Traub
and Others (supra) the principle B of legitimate expectation together with the
concomitant principle of hearing those who have such expectation was
emphasised and regarded as a rule of the common law in South Africa. Corbett
C.J. in that case, traced the development of the doctrine in the U.K. and ended
by noting "that there are many cases where one can visualise in this sphere
where an adherence to the formula of 'liberty, property and existing rights'
would fail to provide a C legal remedy, when the facts cry out for one". Many
other cases have acknowledged that principle and enforced it. However I know
of no case and no case has been quoted to me to the effect that such a
principle can be applied so as to review and set aside a decision of an authority
where what is argued as a legitimate expectation cannot be legal, especially in
the sense that it is contrary to an applicable statute. In the case of Re Liverpool
D Taxi Owners' Association and Others [1972] 2 All E.R. 589, the decision of the
Liverpool Corporation on a licensing matter was regarded as reviewable and
was set aside by the court as the decision was taken by the corporation without
giving any opportunity to the Liverpool Taxi Owners' Association to put their
views to the corporation when their interest would be affected. It was said that
the undertaking by the corporation would be E enforced if it was changed
without hearing the other side, "so long as it was compatible with their statutory
duty". The court recognised particularly that if an undertaking is contrary to an
enabling statute it cannot be binding. In the same case Lord Denning M.R.
referred to the case of Birkdale District Electric Supply Co. Ltd. v. Southport
Corporation [1926] A.C. 355 at 364 wherein it was said that it was- F
"a well established principle of law that if a person or public body is
entrusted by the legislature with certain powers and duties expressly or impliedly
for public purposes, those persons or bodies cannot divest themselves of these
powers and duties. They cannot enter into any contract or take any action
incompatible with the due exercise of their powers or the G discharge of their
duties." This principle was also confirmed in the case of Attorney-General of
Hong Kong v. Ng Yuen Shiu (supra).

Also see:

Phirinyana v. Spie Batignolles [1995] BLR 1

Cooper v Wandsworth of Works (1893) 14 CB (NS) 180.
Smith’s Transport v Index Motors [1981] BLR 167.
BHC v Rabana [1997] BLR 106
R v Liverpool Cooperation exp Liverpool Taxi Fleet Operators Association [1972] 2 QB 299
[1972] 2 ALL ER 589.