THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 298/08

In the matter between:

THE MEC FOR EDUCATION:
NORTHERN CAPE PROVINCE

1st APPELLANT

THE HEAD: DEPARTMENT OF
EDUCATION: NORTHERN CAPE
PROVINCE

2nd APPELLANT

and

BATELEUR BOOKS (PTY) LTD & OTHERS
RESPONDENTS

Neutral Citation: MEC for Education, Northern Cape v Bateleur Books
(Pty)Ltd (298/08) [2009] ZASCA 33 (31 March 2009)

Coram:
CAMERON, MTHIYANE, JAFTA, MAYA JJA, AND
BORUCHOWITZ AJA
Heard:
12 NOVEMBER 2008
Delivered: 31 MARCH 2009
Summary: Legitimate expectation – provincial government department
closely involving private business entities in its procurement
processes – after two years, abruptly changing practice
without notice – unfair and unlawful – decision set aside –
two years not too short for practice to come into being – fact
that alternative source of funds used irrelevant –budgetary
decisions and procurement processes not to be conflated for
purpose of determining duty of fair decision-making

ORDER

On appeal from: The Kimberley High Court (Molantwa AJ and
Kgomo JP – sitting as a court of first instance).

'The appeal is dismissed with costs, including the costs of two counsel.'

JUDGMENTS

CAMERON JA (MTHIYANE, MAYA JJA, AND BORUCHOWITZ
AJA concurring, with JAFTA JA dissenting.)

[1] The question this case raises is whether a government department
can make private entities a close part of its procurement processes,
putting them to trouble and expense in their permissible pursuit of
income, and then without warning summarily exclude them from it,
leaving them to foot the bill.  In my view the answer must be No.  It is the
legal doctrine of legitimate expectation the publishers cry in aid here; but
it is elementary fairness that demands their protection.

[2] I have had the benefit of reading the judgment of my colleague
Jafta JA in which he concludes that the appeal should succeed.  Though I
agree with him that the failure by the appellants ('the department') to file
the record on time should despite the respondents’ strong objections be

condoned, and that the appeal is not moot, I cannot agree with his
conclusion that the respondents ('the publishers') should be non-suited.
The high court judgment in my view rightly assessed the facts (which
appear from the judgment of Jafta JA) as well as the equities of the
situation, and soundly applied the law to them.  I would therefore dismiss
the appeal, though in doing so I should make it clear that I do not find it
necessary to go as far as the high court did in finding a violation of s
217(1) of the Constitution,1 and holding that those provisions require
'competitiveness … determined and driven by […] market forces and not
by the Department on undisclosed criteria'.

[3] The nub is this.  For some years before 2006, the Northern Cape
education department involved publishers closely in public schools’ book
procurement.  Those schools ordered learner teacher support materials
(LTSMs) off a departmental catalogue the publishers at their own expense
prepared for this purpose.  The schools placed orders with bookshops in
the province, which then ordered the books from the publishers.

[4] But in June 2006, the department decided to shortcut the process
by cutting past the schools and the bookshops.  For 2007, it decided on

1 Constitution s 217:
Procurement
(1) When an organ of state in the national, provincial or local sphere of government, or any other
institution identified in national legislation, contracts for goods or services, it must do so in accordance
with a system which is fair, equitable, transparent, competitive and cost-effective.

'central provisioning' for grades 8, 9 and 11 – instead of the schools and
bookshops procuring LSTM, it would do so itself.  Its objectives were
good – mainly efficiency and cost savings.  But the effect on the
publishers was harsh.  Not only did they stand to lose their profits, but
their considerable 2006 investment, in producing the catalogue, paying a
participation deposit, producing and distributing promotional materials,
and undertaking expensive marketing and publicity 'roadshows', would go
to waste.

[5] Worse was that the department made this decision without
consulting them.  It did not even inform them.  They learnt of the
proposed change, months after it was circulated, by accident rather than
the department’s design.  This triggered an emergency meeting with the
department, and when this failed to provide a remedy, a successful
interdict application (in which the publishers acted in concert, even
though in the short term some stood to benefit from the change).

[6] In the face of these facts, the judgment of Jafta JA non-suits the
publishers on three bases:
(a)
He says the publishers have shown no benefit to themselves
from the previous system;

(b)
In any event, he says, that system did not constitute a settled
practice and therefore could not give rise to any expectation; and
(c)
Finally, that system imposed no duty on the department to
consult the publishers.

[7] In reaching this conclusion, Jafta JA accepts, it appears, that the
department’s decision was administrative action as defined in the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) (though the
department contested this in the court below), as well as the principles
now settled in our law relating to the doctrine of legitimate expectation,
which PAJA itself recognizes.2

[8] I agree these principles are applicable.  They should in my view
lead to the failure of the appeal.  I therefore deal in turn with the three
impediments the judgment of Jafta JA discerns.

(a) No benefit, or interests not affected
[9] First, Jafta JA says, it is not clear what benefit or privilege or
advantage the publishers claimed to derive from the previous ordering
process, since it was the schools that placed orders with the bookshops,

2 Promotion of Administrative Justice Act 3 of 2000, s 3(1):
'Administrative action which materially and adversely affects the rights or legitimate expectations of
any person must be procedurally fair.'

and the bookshops that on-ordered from the publishers.  Hence, he says
(para 43), the publishers’ interests were not affected since the only change
was that the department placed the orders directly with the publishers,
and not the schools through the bookshops.

[10] This point does not seem to me persuasive.  There are two answers
to it, though before giving them, I should say that it is not clear that an
applicant in a legitimate expectation case need have relied on the
undertaking to his or her detriment (see Lord Hoffmann in R (on the
application of Bancoult) v Secretary of State [2008] UKHL 61; [2008] 3
WLR 955 para 60); but given what I say below it is not necessary to
decide that now.

[11] The first answer is that benefit to the publishers from the past
practice, and detriment from its abrupt cancellation, has never been
disputed.  It was set out in the publishers’ founding affidavit and not
denied in the department’s answer.  All parties seem to have taken it as
obvious.  Indeed, the publishers’ interest was the counterpart of the
savings the department aimed to achieve through central provisioning: by
buying from fewer publishers, in bigger orders, gain sizeable discounts
would accrue.  The necessary corollary was fewer orders, at lesser cost.
So the publishers as a group undoubtedly benefited from the existing,

more costly, practice.  Discounts and efficient ordering were laudable
departmental objectives: but, given the department’s past practice, and the
publishers’ reliance on them, they had to be pursued fairly.

[12] The second answer springs from the publishers’ explanation of why
they acted in concert in these proceedings even though some stood to
benefit from the change.  It is that central provisioning concentrated
orders on some, while it excluded others.  Schools-based ordering, by
contrast, not only decentralized the process; it diversified the choices the
schools made, thus spreading the available funds more randomly – and
more evenly – between all the publishers.  Some for all, instead of more
for some.

[13] That was a sizeable benefit, to each publisher who on the previous
process would have received orders and on the new system would not.
Each of these publishers has in my view an individual cause of complaint
arising from a forfeited benefit or advantage.  No one has sought to non-
suit any of the publishers who have joined in the litigation on the ground
that, individually, they stood to gain and not lose: hence nothing more
need be said about this.

(b) No expectation because no settled practice

[14] Second, Jafta JA says, the publishers failed to show a regular
practice that they reasonably expected to continue (para 44).  This was
because the province’s education head (the second respondent, or HOD)
used additional funds for LSTM procurement in the grades concerned.
This point was put up against the publishers’ case in the court below,
which rejected it, and the publishers’ written argument in my view
correctly points out that it conflates two different issues – budgetary
decisions and procurement processes.

[15] The fact that different funds were used cannot change the duty of
fairness that applied to the official disbursing them.  As Molwantwa AJ
(with whom Kgomo JP concurred) pointed out in the high court, 'the
funds had already been appropriated for purposes of being disbursed by
the department … The HOD was simply determining how it should be
spent'.

[16] Just as the focus of the inquiry in determining whether a particular
act is administrative action is not the identity of the actor, but the nature
of the power exercised,3 so too the focus is not on the nature or source of
the funds but the nature of the power invoked in disbursing them.  The
duty springs from the department’s prior practice, which involved the

3 President of the Republic of South Africa v South African Rugby Football Union 2001 (1) SA 1 (CC)
para 141.

publishers intricately in the book-ordering process.  It required the
department to tell them it was going to change that process before doing
so.  The department head could no more exempt himself from that duty
by using different funds than he could by taking the decision in an
adjoining office.

[17] Also on the nature of the practice the publishers invoke, Jafta JA
observes that 'the procedure on which [they] rely as proof of a regular
practice was implemented for only two years', concluding that it was
therefore not regular enough to sustain an expectation from which a duty
of fairness could spring.

[18] This approach seems to me to err on the side of formalism.  The
law does not predetermine the time that must elapse before a
departmental or official practice can give rise to a duty of fairness.  It
depends on whether what happened was an isolated event or a procedure
designed to lay a basis for planning future conduct and arrangements.

[19] Here, a decentralized and diversified system was in place for at
least two years, in which the schools placed orders through the
bookshops, which relayed them to the publishers.  That system was
designed and intended to continue.  Indeed, the department informed the

schools by circular in February 2006 that it would.  As in the two
preceding years, it allowed the publishers to draw up their catalogues, to
train and deploy their 'roadshow' staff, to pay the participation deposit,
and to produce and distribute promotional materials.

[20] All this points to the conclusion that, until revoked, the
decentralized schools procurement system was a fairly settled way of
doing things.  It meant that the publishers could rely on it in running up
expenses and in planning for the next year.  It also meant that the
department could not change it without notice to them.  It would in my
view be quite unfair to non-suit them because the system had been in
existence for only two years.

[21] I might add that the High Court relied, in my view justifiably, on a
minute the publishers recorded of the emergency meeting with the
department in October 2006, after the department’s intention to change
the system came to their notice.  That minute shows that the department
itself regarded the practice as the 'normal' procedure, and indeed that it
told the publishers that centralized procurement for 2007 was a 'once-off',
and that 'things will return to normal next year'.

[22] Though the department’s answering affidavit quibbled with the
status of the minute, denying that it was an 'official record', it grudgingly
acknowledged that 'it purports to be a record of what occurred at the
meeting, albeit a record compiled on behalf of the [publishers]'.  But,
significantly, it did not dispute one iota of its accuracy.  The record
persuaded Molwantwa AJ 'that the Department has hereby, directly or by
implication, acknowledged the existence of an established normal
procedure'.  That inference was in my view correct.

(c) No legitimate expectation in law
[23] Jafta JA concludes (para 48) that no legal duty arose that required
the department to warn the publishers that it proposed to change the
system.  Procedural fairness, he says, did not require the department to
give the publishers an opportunity to make representations before
implementing centralized procurement.  I cannot agree with this.  The
settled practice and the reliance the publishers placed on it in making
their plans were quite enough to trigger a legal duty.

[24] In reaching his conclusion, Jafta JA relies again on the suggestion
(para 48) that 'the only complaint the [publishers] could raise is that some
of them would have no orders'.  But that, surely, was quite enough.  The
point is not that the department owed the publishers a living, nor any

obligation to contribute to their profits.  It simply owed them a duty to
give them reasonable notice that it was planning to change the
procurement processes in which it had intimately involved them.  That
would enable them to adjust their business plans, and if necessary their
markets, to absorb the blow.  To change the existing system without
notice, and after they had incurred expenses in reliance on it, was in my
view intolerably unfair.

[25] As Kgomo JP pointed out in refusing the department leave to
appeal, the system was not immutable, and the finding in favour of the
publishers did not mean that procurement 'can never be centralized by the
Department'.  It required only observing elementary fairness in process,
in good time, before doing so.

[26] In my view, this case is on all fours with Premier Mpumalanga v
Association of State-aided Schools 1999 (2) SA 91 (CC), from which
Jafta JA tries to distinguish it.  In both cases, a past practice involving the
disbursement of public funds is interrupted mid-year, without notice, after
preparations have begun for, and reliance placed upon, its continuance.
In both cases, fairness will intervene.

[27] In my view, the interdict was rightly granted.  The appeal is
dismissed with costs, including the costs of two counsel.

________________
E CAMERON
JUDGE OF APPEAL

JAFTA JA

Introduction

[28] This is an appeal against the judgment of the Kimberly High Court
(Molwantwa AJ, Kgomo JP concurring) in terms of which that court
reviewed and set aside the second appellant’s decision and ordered the
appellants to withdraw orders made for delivery of books for learners in
public schools in the Northern Cape province. The main issue raised in
this appeal is whether the respondents − the publishers − had a legitimate
expectation to be heard before the second appellant took the impugned
decision.

[29] The second appellant is the administrative head of the Department
of Education (the department) in the Northern Cape province. The first
appellant is the member of the executive council under whose
responsibility the department falls.  The respondents are publishers of

books and members of the Publishers Association of South Africa, a
voluntary association representing publishers in this country.

[30] The respondents instituted these proceedings for an interdict and
review of the decision taken by the second appellant. This decision was
published in a circular addressed to the first appellant and other
functionaries in the department, including public schools in the province.
As already mentioned, the court below set it aside and directed the
appellants to perform certain acts concerning procurement of books for
learners at public schools. The appeal is with leave of this court.
Statutory setting

[31] Section 29 of the Constitution imposes an obligation on the state to
provide education for everyone while at the same time redressing past
imbalances caused by racially discriminatory laws and practices of the
apartheid era.4 The national and provincial governments enjoy concurrent
competence over education, excluding tertiary education.5 In order to
promote the right to education and regulate the manner in which the state

4  Section 29 provides: ‘(1) Everyone has the right  − (a) to a basic education, including adult basic
education; and (b) to further education, which the state, through reasonable measures, must make
progressively available and accessible. (2) Everyone has the right to receive education in the official
language or languages of their choice in public educational institutions where that education is
reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the
state must consider all reasonable educational alternatives, including single medium institutions, taking
into account  − (a) equity; (b) practicability; and (c) the need to redress the results of past racially
discriminatory laws and practices.’
5  See Part A of Schedule 4 of the Constitution.

would discharge the obligation to provide education, Parliament passed
the South African Schools Act 84 of 1996.

[32] Section 12 of the Act obliges the member of the executive council
responsible for education to provide public schools for education of
learners, out of funds allocated for that purpose by the provincial
legislature.6 The governance and management of public schools is vested
in the governing bodies whose functions and responsibilities are listed
extensively in the Act.7 The Act also mentions powers to be exercised by
the head of department such as the second appellant. Some of these
powers can be delegated to governing bodies upon request. Section 21 of
the Act provides:
‘(1) Subject to this Act, a governing body may apply to the Head of Department in
writing to be allocated any of the following functions:
(a)
to maintain and improve school’s property, and buildings and grounds
occupied by the school, including school hostels, if applicable;
(b)
to determine the extra-mural curriculum of the school and the choice of
subject options in terms of provincial curriculum policy;
(c)
to purchase text books, educational materials or equipment for the school;
(d)
to pay for services to the school;
(dA)
to provide an adult basic education and training class or centre subject to any

6  Section 12 provides: ‘(1) The Member of the Executive Council must provide public schools for the
education of learners out of funds appropriated for this purpose by the provincial legislature. (2) The
provision of public schools referred to in subsection (1) may include the provision of hostels for the
residential accommodation of learners.’
7  See sections 16 and 17 of the Act.

applicable law; or
(e)
other functions consistent with this Act and any applicable provincial law.’

[33] The functions allocated to a governing body in terms of s 21 can be
withdrawn by the head of department. Except in the case of an
emergency, the head of department is obliged to give a governing body
notice of his or her intention to withdraw a function; furnish it with
reasons therefor and grant it an opportunity to make representations. All
of this must occur before the decision is taken. In the case of an
emergency the head of department must furnish the governing body with
reasons for his or her decision after it had been taken and give it a chance
to make representations.8

[34] Of the functions mentioned in s 21, the purchase of books and
educational material is relevant for present purposes. The second
appellant had allocated it to governing bodies at the time the impugned
decision was taken. A governing body of a public school must prepare an

8  Section 22 provides: ‘(1) The Head of Department may, on reasonable grounds, withdraw a function
of a governing body. (2) The Head of Department may not take action under subsection (1) unless he or
she has- (a) informed the governing body of his or her intention so to act and the reasons therefore; (b)
granted the governing body a reasonable opportunity to make representations to him or her relating to
such intension; and (c) given due consideration to any such representations received. (3) In cases of
urgency, the Head of Department may act in terms of subsection (1) without prior communication to
such governing body, if the Head of Department thereafter − (a) furnishes the governing body with
reasons for his or her actions; (b) gives the governing body a reasonable opportunity to make
representation relating to such actions; and (c) duly considers any such representations received. (4)
The Head of Department may for sufficient reasons reverse or suspend his or her action in terms of
subsection (3). (5) Any person aggrieved by a decision of the Head of Department in terms of this
section may appeal against the decision to the Member of the Executive Council.’

annual budget according to prescripts determined by the member of the
executive council and such prescripts must be published in a Provincial
Gazette. The budget must be presented to a general meeting of parents for
approval before being adopted by the governing body.9 A governing body
must establish a school fund and administer such fund in accordance with
directions issued by the head of department. Money received by a school,
including school fees, must be paid into this fund.10 A governing body
also has the responsibility of supplementing resources supplied by the
state so as to improve the quality of education to all learners at its
school.11 The norms and standards for funding schools are determined by
the Minister of Education after consultation with the Council of
Education Ministers and the Minister of Finance. These norms and
standards set out the criteria for the distribution of funding to all schools
in a fair and equitable manner. They also provide for a system in terms of
which learners are placed into quintiles according to financial means.
This is used to determine the level of funding.

[35] Public schools are funded from the public revenue and the state
must effect the funding on ‘an equitable basis in order to ensure the
proper exercise of the rights of learners to education and the redress of

9  See s 38 of the Act.
10  See s 37 of the Act.
11  See s 38 of the Act.

past inequalities in education provision’. The state must annually provide
information to public schools regarding such funding, to enable them to
prepare budget estimates for the next financial year.12

[36] Therefore, for the supply of resources to public schools to succeed
there must be co-operation between the governing bodies and the
departmental officials in the provinces. Public schools located in affluent
areas have better resources because they can supplement whatever
funding they receive from the state. Of the 421 schools in the Northern
Cape province, 409 schools were allocated the power to procure their
own Learner Teacher Support Material (LTSM).

Factual background

[37] The decision which was set aside by the court below concerned
procurement of LTSM for grades 8, 9 and 11 in 2007. Before referring to
that decision and considering the basis on which it was challenged, it is
necessary to set out the procedure followed in the procurement of LTSM
in the Northern Cape province. Usually in October of each year the
department received from publishers such as the respondents books
published by them and which they wished to be included in the provincial

12  See s 35 of the Act.

catalogue. This catalogue was compiled by the department and listed
books from which orders could be made for various schools in the
province.

[38] Before being placed in the catalogue, books were evaluated by
officials in the department. By the end of January each year, a catalogue
comprising books accepted by the evaluation team was compiled. Once
the catalogue was finalised it was submitted to the procurement unit in
the department. This unit prepared requisition forms for schools; printed
and distributed the catalogue to schools and arranged for exhibitions by
publishers whose books were listed in the catalogue.

[39] By May the schools submitted their completed requisition forms,
which constituted orders, to bookshops. Some schools submitted these
orders to the departmental procurement unit. From the bookshops or the
procurement unit the orders were normally sent to publishers.

[40] In 1997 the national government adopted the policy of Outcome
Based Education which necessitated a fundamental change in the
curriculum. This policy was later implemented in terms of a framework
called Curriculum 2005 which later became the New Curriculum
Statement (the NCS). The NCS was introduced incrementally as from

2004. In that year the new curriculum for grades R to 3 was implemented.
In 2005 the implementation was extended to grades 4 to 6 and in 2006 it
was the turn of grades 7 and 10. The NCS in respect of grades 8, 9 and 11
was scheduled to be implemented in 2007.

[41] The implementation of the NCS meant that the course content and
LTSM for each grade had to change. This necessitated procurement of
new textbooks as the old ones could no longer be used. Each learner had
to be supplied with seven to eight new textbooks. This placed a heavy
financial burden on the schools, especially the less resourced ones. Due to
budgetary constraints it is not possible for the state to provide each
learner with all the necessary textbooks, educator manuals and stationery.
Wealthier schools are able to raise additional funds to cover the shortfall
while learners in poor schools have to be content with the material
supplied by the state.

[42] When the NCS was first implemented in 2004, schools did not
receive additional funding to cover the costs occasioned by the
procurement of the new LTSM. They had to acquire such material from
their ordinary budget allocations. The same thing happened in 2005.
During 2006 there was uncertainty regarding who was going to bear the
costs for the new LTSM for grades 7 and 10. The uncertainty arose from

statements made by some departmental officials.  As a result the schools
used most of their funds to acquire other material they needed. At the
time the department cleared the misunderstanding, there were no funds in
the schools’ budgets for procurement of the new LTSM. In order to
address the problem the department was able to raise additional funding
in the amount of R5 million.

[43] The additional amount was made available for the purpose of
acquiring LTSM for grade 10 only. Schools were allowed to place orders
through the department which forwarded them directly to publishers. The
bookshops were left out of the process. In this way the department was
able to negotiate a discount of 30% from the retail price of LTSM. In so
far as LTSM for other grades was concerned, schools were required to
pay for orders from their own budgets.

[44] Initially the authorities had scheduled the implementation of the
NCS in respect of grades 8 and 11 only. But later the Council of Ministers
decided that implementation in respect of grade 9 should be effected
simultaneously with those two grades. The latter grade was added after
school budgets had been finalised. As a result procurement of LTSM in
respect of that grade was not budgeted for. The department addressed the
additional financial burden on schools by allocating a special fund to

cover costs for LTSM for the three grades. Having secured the funds the
second appellant was of the view that in order to achieve an equitable
distribution of resources the department − and not the schools - should
make the selection of books to be ordered for grades 8, 9 and 11. The
selection was to be made from the catalogue referred to above. Since the
department had previously obtained a 30% discount when it placed orders
directly with publishers, he decided to again leave the bookshops out of
the procurement process. In his view making orders directly to publishers
had proved to be more efficient and cost-effective. Having considered a
recommendation submitted to him by officials in the department, the
second appellant issued, as he had authority to do so, circular 67/2006 on
20 July 2006, setting out his decision.

[45] As the circular contains the impugned decision it is necessary to
quote it in full. It reads:
‘CIRCULAR NO 67/2006

LEARNING AND TEACHING SUPPORT MATERIAL (LTSM) FOR SECTION 21
AND NON-SECTION 21 SCHOOLS FOR THE YEAR 2006/2007.

1.
The Department will be provisioning LTSM for Grades (8,9,&11)
implementing NCS (National Curriculum Statement) in 2007 centrally.

2.
Section 21 schools however, will be responsible for procuring their own Text
and Reading books for all other top-up Grades, as well as the textbooks not
supplied by the Department for Grades 8,9 & 11 and other areas of LTSM
(Paper, Writing books & Stationery) from the allocations they will be
receiving.

3.
Non-section 21 schools will place their orders from approved suppliers

appointed through the bidding process via the District Offices.

4.
The approved book catalogues for all Grades except Grade 9 with copies of
the Management Plan and Circular NO 22 will be forwarded via the District
Offices to all schools.

5.
District Offices are kindly requested to ensure that all schools adhere to these
dates in the management plan.

6.
The Supply Chain Management Unit will be procuring the Grades 8, 9 and 11
titles on behalf of the schools as follows:

Grade 8
- 7 Text Books per learner (Excluding Languages)

Grade 9
- 7 Text Books per learner (Excluding Languages)

Grade 11
- 5 Text Books per learner (Excluding Languages)

7.
The Publishers will deliver the policy directly to Head Office who will in turn
be responsible for the receipt and packaging of these books to the schools via
the District Offices.

8.
Schools will in turn be responsible, as in the past, for providing regular
progress reports on the ordering and delivery of all LTSM to their respective
District Office who will, in turn, have to provide Head Office with these
progress reports.

Your co-operation in this regard will be appreciated.

____________________________
DEPUTY DIRECTOR GENERAL
01-09-06’

[46] Although the circular stipulates that the department would procure
a specified number of text books for each learner in the affected grades, it
expressly states that schools, if they wished to acquire books not selected
by the department, were free to order them in the normal way and pay for
them from their own budgets. In addition schools were still responsible
for procurement of LTSM for other grades (para 2 of the circular). The
decision to centralise procurement did not affect 12 schools which were
described as ‘non-section 21 schools’. These schools could order their

material from suppliers who had been awarded tenders to supply material
(para 3 of the circular).

[47] The circular was sent to schools in the province. None of them
complained about the decision that the department was to select books for
them and that the bookshops were left out of the procurement process. It
was common cause that this decision was taken without giving the
governing bodies an opportunity to make representations. But the
governing bodies did not challenge it. In fact the schools were happy with
the decision. The bookshops which had been left out of the supply chain
also did not challenge the decision. It was only the respondents who
attacked it, even though some of them were to benefit from the decision
as orders had already been made to them. The respondents’ role in the
chain was to supply the bookshops with books ordered from the latter by
schools.

[48] Although the respondents had challenged the decision on various
grounds they pursued two grounds only, both in the court below and this
court. The first was that the decision did not comply with the provisions
of s 217 of the Constitution.13 Secondly, they contended that the decision

13  Section 217(1) provides: ‘When an organ of the state in the national, provincial or local sphere of
government, or any other institution identified in national legislation, contracts for goods or services, it
must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-

amounted to procedurally unfair administrative action which was taken in
contravention of s 3 of the Promotion of Administrative Justice Act 3 of
2000 (PAJA). In support of this ground they argued that they had a
legitimate expectation to be heard before the concerned decision was
taken. Section 3(1) of PAJA provides:
‘Administrative action which materially and adversely affects the rights or legitimate
expectations of any person must be procedurally fair.’

Section 3(2) proclaims that a person whose legitimate expectations are
affected must be given a ‘reasonable opportunity to make representations’
before the decision is taken.

Preliminary issues

[49] Before I address matters raised in this appeal, it is necessary to
consider two preliminary issues. The first is that the appellants failed to
lodge the record timeously and as a result they were obliged to apply for
condonation. The second is whether this appeal is moot or not. When
refusing leave to appeal the court below pointed out that the matter had
become academic as its order had already been carried out and the NCS
for the relevant grades had been implemented. I address these issues in

effective.’

turn.

Condonation

[50] In a case such as the present where leave was granted by this court,
the appellant was supposed to lodge its notice of appeal with both the
registrar of this court and the registrar of the court a quo within one
month from the date on which leave was granted.14 The date on which the
notice of appeal was lodged is used as a reference point from which the
period for lodging the record is calculated. Once the notice of appeal is
lodged, the appellant must file or lodge within three months six copies of
the record of proceedings in the court below and deliver to respondents
copies of the same record. The parties may, however, agree to extend the
period or the registrar may do so upon written request provided that
notice has been given to other parties. But the registrar may not extend
the period for more than two months.15

[51] In this matter the appellants lodged their notice of appeal on
3 October 2007. They ought to have lodged the record by no later than
4 February 2008. They failed to do so. The record together with the

14  Rule 7(1) provides: ‘(1) An appellant in a civil case shall lodge a notice of appeal with the registrar
and the registrar of the court a quo within one month after the date of - (a) …. (b) the granting of leave
where leave to appeal is required ….’
15  See Rule 8 of the Supreme Court Rules.

application for condonation were lodged on 13 June 2008. It was four
months late. The applicants’ attorney gave the following explanation for
the delay. He said the record was delivered to the respondents’ attorneys
on 9 January 2008. The copies which were meant to be lodged with the
registrar were delivered to the appellants’ Bloemfontein attorneys.

[52] On 14 January 2008 the Bloemfontein attorneys informed him that
the record was defective in that it was not compiled by a ‘professional
transcription service’. It was therefore not lodged with the registrar. The
appellants’ attorney contacted various transcribing companies and all of
them indicated that they could not complete the work in time for lodging
before 4 February 2008. While on sick leave, he instructed a secretary in
his office to send a letter requesting extension of time to the respondents’
attorneys. But this letter was erroneously sent to counsel. On returning to
work he sent the letter to respondents’ attorneys on 7 February. In a letter
dated 25 February the respondents’ attorneys declined to grant the
appellants an extension. He received the record from transcribers on
26 March. He immediately forwarded a copy to counsel with instructions
that an application for condonation and heads of argument be prepared.
He received both the application and heads of argument from counsel on
10 June. As mentioned, it was lodged on 13 June.

[53] The respondents opposed the application for condonation. They
contended that since the granting of the order on 21 November 2006, they
have conducted their affairs in accordance therewith and if the appellants’
were granted condonation and should they succeed, the new order will be
‘disruptive and prejudicial’ to the respondents. They argued that they
have spent amounts of money in promoting publications which were
included in catalogues for 2007 and 2008. These promotions were done
on the understanding that the procedure followed by schools in ordering
books, before the circular was issued, would continue to apply. If they
had known that the procedure would be stopped, they could not have
spent money on promotions. They contended that they were entitled to
finality of the matter.

[54] The correct approach to applications for condonation was laid
down in Federated Employers Fire & General Insurance Co Ltd and
Another v McKenzie.16 In that case Holmes JA said:
‘In considering petitions for condonation under Rule 13, the factors usually weighed
by the Court include the degree of non-compliance, the explanation therefor, the
importance of the case, the prospects of success, the respondent’s interest in the
finality of his judgment, the convenience of the Court and the avoidance of
unnecessary delay in the administration of justice.’

16  1969 (3) SA 360 (A) at 362G-H.

[55] Applications for condonation in this court are now regulated by
Rule 12 which requires the applicant to furnish a detailed and accurate
explanation for the delay to enable the court to decide whether to grant or
refuse condonation.17 Although the explanation given by the appellants’
attorney is not entirely satisfactory, as soon as the defect in the record was
pointed out, he took remedial steps and further causes of the delay were
not occasioned by him. He had submitted the record to the transcribing
company before the deadline for lodging the record lapsed. Upon
receiving it from the transcribers, he immediately instructed counsel to
prepare heads of argument and the application for condonation. The
appellants themselves were in no way to blame for the entire delay. It also
appears to me that there are prospects of success on the merits.

[56] The respondents’ objection is primarily based on their interest in
the finality of the case. But they were aware that the appellants were
desirous of appealing against the judgment because they were served with
the notice of appeal and the defective record. Their consent to an
extension was sought but withheld. When all this happened the
respondents had already spent money on promoting their publications.
After the lodging of the notice to appeal the respondents did not take any

17  Rule 12(4) provides: ‘(4) Every application, answer or reply shall - (a) be clear and succinct and to
the point; (b) furnish fairly all such information as may be necessary to enable the court to decide the
application; and (c) deal with the merits of the case only in so far as is necessary for the purpose of
explaining and supporting the particular grounds upon which the application is sought or opposed.’

action which they could not have taken had they have known that the
appellants were still pursuing the appeal. In compliance with the order of
the court below, schools had selected and requisitioned books as if the
circular was not issued. The appellants’ success on appeal, if any, will not
reverse the orders already made. In these circumstances I am satisfied that
condonation must be granted.

Mootness

[57] Counsel for the respondents argued that the appeal was moot
because judgment by this court will have no practical effect. The NCS for
the relevant grades was implemented in 2007 and in requisitioning
LTSM, schools acted as if the impugned decision did not exist. While it is
true that a judgment which effectively revives that decision would not
have any effect on the implementation of the NCS for grades 8, 9 and 11,
I disagree that such judgment will have no practical effect. The effect of
the order granted by the court below is that whenever the department
contemplates taking a similar decision, it must afford the respondents an
opportunity to make representations. A judgment which sets aside the
order of the court below will release the department from that obligation.
In this context therefore such judgment will have a practical effect. In

Natal Rugby Union v Gould18 this court said:
‘Had there been no appeal the judgment of the Court below would in all probability
have continued to influence the procedure adopted in respect of office bearer elections
at future union meetings…. In the circumstances I consider that determination of the
appeal will, quite apart from the issue of costs in the Court below, have a ‘practical
effect or result’ within the meaning of s 21A of the Supreme Court Act.’

Failure to comply with s 217 of the Constitution

[58] Having found that the impugned decision amounted to
administrative action the court below based its judgment on two grounds.
It said:
‘34
In the circumstances of this case, I find that the Applicants [Respondents]
have established that there are grounds of review for the following reasons:
34.1
There is clear evidence that there was a legitimate expectation which arose
from the existence of a regular practice which the Publishers reasonably expected to
continue.
34.2
The decision of the HOD to cancel the right of the schools to select and
procure LTS − Material in respect of grades 8, 9 and 11 without giving prior notice to
the Publishers was an administrative action which is subject to review.
34.3
The HOD failed to adopt a procedurally fair and justifiable process in terms of
section 217 of the Constitution read with section 3(2) of PAJA.’

18  1999 (1) SA 432 SCA at 444J-H445B.

[59] Section 217 does not require the process followed by the state in
procuring goods to be justifiable. What is required is that such process
must be fair, equitable, transparent, competitive and cost-effective. The
court below found that the process followed in the present case failed to
meet the criteria in s 217. It held that for the process to be competitive
orders ought to have been made to all publishers whose books were in the
catalogue. Proceeding from the premise that the respondents should have
been notified of the impugned decision, the court below held that the
process lacked transparency. It reasoned thus:
‘It is not clear how equity will be achieved by a process which by its very nature has
excluded some publishers without any sound basis whatsoever. There is no reason
advanced why centralization was kept under a cloak of secrecy until such a late stage
(02/10/2006). There was, without doubt, no transparency at all. The process had not
been shown to have been cost effective or to promote competitiveness….
Competitiveness in this context can only be healthy when it is allowed to be
determined and driven by the market forces and not by the Department on undisclosed
criteria. This process can only be achieved when all publishers are given an equal
opportunity to market their products to the schools and then be supported and chosen
on the quality of their products.’19

[60] To the extent that the court below implies that the publishers were
not given equal opportunity to market their books, it erred. All

19 The judgment of  the court below at para 31.

respondents were allowed and did submit their books for inclusion in the
catalogue. The selection of books ordered by the department was made
from that catalogue. No publisher was excluded from submitting its
books for consideration and listing in the catalogue. That process was as
transparent, competitive, fair and equitable as contemplated in s 217.
Having followed such process the section did not oblige the state to
procure books from every publisher whose books appear in the catalogue.
It was for the state (either through the department or schools themselves)
to choose from the catalogue books needed for learners at schools. The
selection of books, per se, could not make the process to be inconsistent
with s 217 of the Constitution. I also fail to appreciate how the selection
that led to orders being made to some publishers rendered the process less
cost-effective. The record does not show any pricing by any of the
publishers.

[61] Before addressing the issue of legitimate expectation, I must point
out that the finding by the court below to the effect that the second
appellant cancelled the schools’ right to select material is incorrect. There
was simply no evidence supporting it. Instead overwhelming evidence
and the decision itself show that the schools retained their right to select
and order material for grades 8, 9 and 11. In this regard the circular states:
‘Section 21 schools however, will be responsible for procuring their own Text and

Reading books for all other top-up Grades, as well as the textbooks not supplied by
the Department for Grades 8,9 & 11 and other areas of LTSM (Paper, Writing books
& Stationery) from the allocations they will be receiving.’

[62] Clearly, if the schools wanted to make a selection of books other
than those selected by the department, they were free to do so. They were
also allowed to procure LTSM for other grades. The impugned decision
did not at all interfere with schools’ budgets. It was confined to the
additional fund only. The error by the court below influenced the manner
in which the case was presented in this court. Counsel for the respondents
argued that the second appellant had, without giving the schools and
publishers a hearing, withdrawn the schools’ power to select books. The
submission is not borne out by the facts as demonstrated above.

[63] Although I have reservations I am willing to assume in the
respondent’s favour that they have established locus standi in respect of
the subject matter of these proceedings. I am also willing to assume in
their favour that the impugned decision constitutes administrative action
envisaged in PAJA. The question that arises is whether the decision
affected the respondents’ legitimate expectation. They did not claim that
it affected their rights nor could they do so on the present facts. I address
the issue of legitimate expectations below.

Legitimate expectation

[64] Counsel for the respondents argued that the impugned decision
affected their legitimate expectation and as a result they should have been
given the opportunity to make representations before it was taken. Since
it is common cause that the respondents were denied that opportunity, he
submitted that the decision contravened s 3 of PAJA. Accordingly, he
argued, the decision was procedurally unfair and consequently invalid.

[65] In addressing this issue the starting point is to determine whether a
legitimate expectation existed or not. In Administrator, Transvaal and
Others v Traub and Others20  − a leading authority on the topic − Corbett
CJ described a legitimate expectation as a −
‘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’.21

[66] The doctrine of legitimate expectation finds application where a
person enjoys a privilege, advantage or benefit which it would be unfair

20  1989 (4) SA 731 (A).
21  Ibid at 758D-E.

to deny such person without giving him or her a hearing.22 The legitimate
expectation contemplated in s 3 of PAJA can arise either from a promise
made by the decision-maker or from a regular practice which is
reasonably expected to continue. The purpose of legitimate expectation is
to provide procedural fairness in decision-making in circumstances where
the decision does not affect the rights of the party in need of protection
against unfairness. In Traub Corbett CJ, however, warned against the
danger of freely invoking the doctrine. The learned Chief Justice said:
‘[W]hereas 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 can 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 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.’23

[67] The application of the doctrine of legitimate expectation is
determined on a case-by-case basis. The test for establishing whether a
legitimate expectation exists is twofold. A party claiming that its
expectation has been adversely affected by administrative action must

22  See Walele v City of Cape Town and Others 2008 (6) SA 129 (CC) at para 35.
23  Above n 17 at 761D-G.

prove, by means of accepted facts, either that the decision-maker had
made a promise or that it followed a regular practice which the claimant
reasonably expected to continue and be extended to it. Once this is
established, then the court must determine whether, in the circumstances
of the particular case, the facts introduce a legal duty which obliges the
decision-maker to afford the claimant a pre-decision hearing.24 This
entails a value judgment to be made by the court while bearing in mind
the need to strike the balance referred to in Traub.

[68] Returning to the present facts, in determining whether the
respondents have established a legitimate expectation it is necessary to
examine their case as set out in the papers. In their founding affidavit the
respondents stated:
‘25.
In the past schools in the Northern Cape have ordered publications off a
catalogue produced by the Department. These orders were placed with various
bookshops in the province (‘suppliers’), which suppliers in turn ordered the
publications selected by the schools from the relevant publishers.(my emphasis)
26.
This year the Department has, in most subjects/learning areas, excluded the
schools and the suppliers from the process, selected the books themselves and placed
orders directly with certain of the publishers.’

24  Above n 19 at para 38.

[69] The above procedure was confirmed by the appellants with one
qualification. That is that schools submitted orders either to bookshops or
the department. Because these are motion proceedings, where the
appellants’ version differs with that of the respondents, it must prevail.25
However, it is quite clear that parties on both sides agree that previously
the selection of books was done by schools, irrespective of whether
subsequently the orders were submitted to bookshops or the department.

[70]  On the respondents case it is not clear what benefit, privilege or
advantage they derived from the process whereby the schools sent orders
to bookshops who, in turn, acquired stock from the respondents. It
appears to me that if there was any advantage flowing from that process,
it accrued to the bookshops which, it seems, were suppliers to whom
tenders were awarded. There was no direct link between the schools and
the publishers. The bookshops were the common link. In my view the
respondents’ interests were not affected even in the case where the
schools submitted orders to the department, following a selection of
books by the schools themselves. The department forwarded such orders
to the respondents. The fact that orders did not come from the bookshops
made no difference. The only thing new brought about by the impugned
decision is that the department selected books for schools. That selection

25  See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

was, of course, confined to orders relating to the special fund and such
orders were placed directly with the respondents.

[71] The power to select books suitable for learners in public schools in
the Northern Cape province vests in the second appellant. He controls the
budget allocated to the department. It was him who made additional funds
available for procurement of LTSM for the relevant grades. He is the
functionary who allocated the power to procure books to the schools’
governing bodies. The impugned decision did not withdraw that power
but it meant that orders made in relation to the additional fund the
department would select the books. The schools were happy with the
decision. He had done the same in the previous year in respect of
additional funds which were made available for ordering LTSM for grade
10. In these circumstances I am unable to appreciate how the respondents
could entertain an expectation that they would be heard before the
decision was taken. It seems to me that they could not have anticipated
that additional funds were going to be made available. Nor could they
have reasonably expected to be heard if the department were to decide to
make the selection itself. If anything, they should have expected the
opposite when additional funds were made available because that was the
position in the previous year.

[72] Moreover, the procedure on which the respondents rely as proof of
a regular practice was implemented for only two years before. In the third
year of implementing the NCS the department departed from that
procedure in respect of grade 10. Can it be said − in these circumstances
− that there was a regular practice which the respondents expected to
continue? I think not. Bearing in mind that the schools were still free to
select and order books for grades 8, 9 and 11, there was no right or
interest of the respondents which was adversely affected by the impugned
decision.

[73] But on the assumption that the first requirement is fulfilled the
question that needs to be considered is whether in these circumstances the
respondents should have been given the opportunity to make
representations before the decision was taken. In doing so, Corbett CJ’s
caution in Traub must be borne in mind. That warning is consistent with
the principle of judicial deference referred to in the following statement
by Professor Hoexter, cited with approval by this court and the
Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others:26
‘[A] judicial willingness to appreciate the legitimate and constitutionally ordained
province of administrative agencies; to admit the expertise of those agencies in

26  2004 (4) SA 490 (CC); 2003 (6) SA 407 (SCA) and Logbro Properties CC v Baldderson NO and
Others 2003 (2) SA 460 (SCA).

policy-laden or polycentric issues, to accord their interpretation on fact and law due
respect; and to be sensitive in general to the interests legitimately pursued by
administrative bodies and the practical and financial constraints under which they
operate. This type of deference is perfectly consistent with a concern for individual
rights and a refusal to tolerate corruption and maladministration. It ought to be shaped
not by an unwillingness to scrutinize administrative action, but by a careful weighing
up of the need for − and the consequences of − judicial intervention… Above all, it
ought to be shaped by a conscious determination not to usurp the functions of
administrative agencies; not to cross over from review to appeal.’27

[74] Even if the respondents had established facts giving rise to a
legitimate expectation, it could not follow as a matter of law that they
were entitled to a hearing. The question whether an expectation is
legitimate to the extent of giving rise to the right to be heard depends on
the circumstances of each case. The fact that a decision is prejudicial to a
particular party, by itself, is not sufficient for invoking the doctrine of
legitimate expectation. The issue is whether the facts of the case, viewed
as a whole, cry out for a pre-decision hearing. The claimant’s subjective
hope or expectation is not relevant to the enquiry. In SARFU28 the
Constitutional Court said:
‘The requirement of procedural fairness, which is an incident of natural justice,

27  Hoexter ‘The future of Judicial Review in South African Administrative Law’ (2000) 117 SALJ 484
at 501-2.
28 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 1 (CC).

though relevant to hearings before tribunals, is not necessarily relevant to every
exercise of public power. Du Preez’s case is no authority for such a proposition, nor is
it authority for the proposition that, whenever prejudice may be anticipated, a
functionary exercising public power must give a hearing to the person or persons
likely to be affected by the decision. What procedural fairness requires depends on the
circumstances of each particular case. For instance, in Du Preez’s case, the calling of
evidence was likely to cause severe prejudice to the persons implicated thereby. Yet,
it could hardly have been suggested that the commission would not have been entitled
to take the decision to call the witnesses without first hearing such persons.’29

[75] I am of the view that the present case falls into the category
referred to in SARFU. Procedural fairness did not require the second
appellant to give the respondents an opportunity to make representations
before he decided that the department would make the selection of books
and place orders with some of the respondents. Since the selection was
made from the catalogue and the orders made to some of the respondents,
the only complaint the respondents could raise is that some of them
would have no orders. By selecting one book for each learner throughout
the province, the second appellant reduced the number of publishers to
whom orders could be made. In essence this was the complaint by the
respondents. The impact of the selection on the respondents must be
viewed in the light of the fact that it applied to orders made in relation to

29 Ibid para 219.

the special fund only. The schools were still free to select other books for
the same grades and LTSM for other grades. On these facts the duty to act
fairly, in my view, did not require a pre-decision hearing.

[76] For the conclusion that the respondents had a legitimate
expectation to be heard, the court below relied on Premier, Mpumalanga
and Another v Executive Committee, Association of State-aided Schools,
Eastern Transvaal.30 In that case the Constitutional Court held that in the
particular circumstances of that case the affected schools had a legitimate
expectation to be heard before the decision withdrawing subsidies was
taken. The court emphasised the fact that it was procedurally unfair to
cancel the subsidies in the middle of the year, without notice, after the
MEC for education had allocated funds for such subsidies for the entire
financial year. Moreover, the decision to cancel subsidies was made to
have a retrospective effect.

[77] The facts in Premier Mpumalanga were briefly that the department
of education had been paying subsidies to schools for the needy white
learners over a period of years. The payment was effected in terms of a
policy of the past apartheid government. The current democratic
government wanted to terminate the policy as it was based on and

30 1999 (2) SA 91 (CC).

perpetuated the inequalities of our past. At the end of the 1994 school
year, the provincial government issued notice that payment of subsidies
would continue until the end of 1995 or until the government decided
otherwise. Subsidies were indeed paid for the first and second terms in
1995. In May 1995 the MEC for education allocated funds from his
budget for the payment of the subsidies until the end of the financial year.
As a result the schools arranged their affairs on the footing that they
would receive the subsidies until the end of the financial year or until
payment is terminated by notice to schools. However, the MEC informed
the schools on 5 August 1995 that he had decided to terminate the
subsidies with effect from July 1995. The facts of this case are
distinguishable from the present matter and reliance on it was misplaced.

[78] For these reasons I would allow the appeal.

________________
C N JAFTA
JUDGE OF APPEAL

Appearances:

For 1st & 2nd
Appellant:

I Jamie SC

D Borgström

Instructed by

State Attorney Bloemfontein

For Respondent:

R G L Stelzner

Instructed by

Fairbridges Attorneys Cape Town

Duncan & Rothman Kimberley

McIntyre & van der Post Bloemfontein
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN SUPREME
COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
Tuesday 31 March 2009

Status:
Immediate

Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

MEC for Education, Northern Cape v Bateleur Books (Pty) Ltd
(298/08) [2009] ZASCA 33 (31 March 2009)

In a judgment delivered today, the Supreme Court of Appeal has
held that government departments that involve private business
entities in their procurement practices cannot change the
processes without warning to the businesses.

In so holding, the SCA, by a majority of 4 to 1, dismissed an
appeal from a judgment of the High Court in Kimberley, in which
Molwantwa AJ (with whom Kgomo JP concurred) found in favour
of a group of publishers which for some years before 2006 the
department had closely involved in public schools’ book
procurement.

Those schools ordered learner teacher support materials (LTSMs)
off a departmental catalogue the publishers at their own expense
prepared for this purpose.  The schools placed orders with
bookshops in the province, which then ordered the books from the
publishers.

But in June 2006, the department decided to shortcut the process
by cutting past the schools and the bookshops.  For 2007, it
decided on 'central provisioning' for grades 8, 9 and 11 – instead
of the schools and bookshops procuring LSTM, it would do so
itself.  Its objectives were good – mainly efficiency and cost
savings.  But the effect on the publishers was harsh.  Not only did

they stand to lose their profits, but their considerable 2006
investment, in producing the catalogue, paying a participation
deposit, producing and distributing promotional materials, and
undertaking expensive marketing and publicity 'roadshows', would
go to waste.

Worse was that the department made this decision without
consulting them.  It did not even inform them.  They learnt of the
proposed change, months after it was circulated, by accident
rather than the department’s design.  This triggered an emergency
meeting with the department.  But when this failed to provide a
remedy, the publishers successfully interdicted the department
from changing the practice for 2007.

The majority of the SCA, in a judgment by Cameron JA (in which
Mthiyane JA, Maya JA and Boruchowitz AJA concurred) found that
the High Court had rightly assessed the facts and equities of the
situation, and soundly applied the law to them.  The publishers
invoked the legal doctrine of legitimate expectation; but the
majority found that it was elementary fairness that demanded their
protection.

In a dissenting judgment, Jafta JA found that the doctrine of
legitimate expectation could not apply because (a) the publishers
had shown no benefit to themselves from the previous system; (b)
in any event, that system did not constitute a settled practice and
therefore could not give rise to any expectation; and (c) finally, that
system imposed no duty on the department to consult the
publishers.