MATAKE & ORS v MINISTER OF LOCAL GOVERNMENT & HOUSING & ANOR 2007 (2) ZLR 96 (H)

Flynote

Administrative law — review — grounds for — legitimate expectation — c what party seeking to rely on legitimate expectation must establish

Headnote

The applicants were public servants employed at a teachers' training college. Their main task was to provide catering and cleaning services at the college. The Ministry sub-contracted private companies to provide these services, thus rendering the applicants redundant. The applicants were retrenched. They requested the first respondent to be allowed to purchase the government houses in which they had been living for many years. Nearly two years later the first respondent replied, saying that a policy was being formulated and that the sitting tenants would be advised. Eighteen months later, the Secretary to the first respondent told the applicants that their request to purchase the houses had been turned down. They were given three months' notice to vacate. The applicants did not move out or seek a review of the decision, but instead, at the expiry of the three month period they obtained a provisional order which stayed their eviction. At the hearing at which they applied for confirmation of the provisional order, they sought an order compelling the respondent to sell the houses to them. They claimed that the first letter gave rise to a legitimate expectation that the houses would be sold to them.

Held, that a 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. The requirements for legitimacy of the expectation include the following:

• (1) The representation underlying the expectation must be clear, unambiguous and devoid of relevant qualification.

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• (2) The expectation must be reasonable.
• (3) The representation must have been induced by the decision-maker.
• (4) The representation must be one which it was competent and lawful for the decision-maker to make, without which reliance cannot be legitimate.

Based on these criteria, the applicants' case was defective from the outset. They may subjectively have had expectations, but these failed to meet the criteria in (1) and (2). There was no representation to the applicants that the houses would be sold to them — let alone a clear, unambiguous and unqualified representation. Nor were the applicants' expectations to that effect reasonable. All that the letter stated was that their requestwould be considered, which could mean either a favourable or an unfavourable outcome of the consideration.