THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no:  79/2001
REPORTABLE

In the matter between:

SOUTH AFRICAN VETERINARY COUNCIL

First Appellant

REGISTRAR, SOUTH AFRICAN VETERINARY COUNCIL

Second Appellant

and

GREG SZYMANSKI

Respondent

Before:
Howie P, Olivier, Streicher, Cameron and Lewis JJA
Heard:
Tuesday 25 February 2003
Judgment: Friday 14 March 2003

Legitimate expectation – minimum requirements for invoking – must
be a representation – and reliance upon it must be reasonable –
Motion court proceedings – dispute of fact – basic position restated

JUDGMENT
_______________________________________________________

CAMERON JA:

[1] This is an appeal against an order of the Pretoria High Court
which set aside an examination pass mark decision of the first
appellant, the South African Veterinary Council (‘the Council’)
(whose Registrar is the second appellant), and which ordered the
Council to register the respondent, Dr Szymanski, as a veterinary
surgeon.  The Court of first instance (Motata J) refused leave to
appeal, but this Court later granted the necessary leave.
[2] The dispute arose from a special examination the Council
conducted in September 1998 to enable South African citizens or
permanent residents with foreign veterinary qualifications to
qualify for registration under the South African legislation.1  Dr
Szymanski obtained a veterinary degree in Poland in 1978.  He
immigrated to South Africa in 1989, becoming a citizen by
naturalisation in 1994.  He sat the special examination in 1998.
After moderation he was awarded a combined mark of 45,25% for
the two component parts (written and oral).  This the Council
considered a failure, and refused to register him.  In September
2000 he launched proceedings in the Pretoria High Court.  The
relief he sought was an order setting aside the Council’s decision

1 Veterinary and Para-Veterinary Professions Act 19 of 1982 (‘the 1982 Act’).

that the pass mark was 50%, and requiring it to register him as a
veterinary surgeon.
[3] The case Dr Szymanski made in his founding affidavit was that he
had a legitimate expectation that the requirement for passing the
special examination was 40% for each of the oral and written
parts (and not 50% for either or both combined).  He claimed the
expectation arose from (a) pre-examination letters the Council
sent; and (b) conversations he had in August 1998 with one of its
members, Professor Rautenbach, who was conducting a
preparatory course on behalf of the Council for special
examination entrants.  To see whether Dr Szymanski made out a
case at all, and whether he was entitled to the relief he obtained, it
is necessary to set out the details of both aspects of the claimed
expectation.
[4] The Council wrote to Dr Szymanski on 13 June 1997 informing
him of the special examination.  Attached were two documents –
the first headed ‘Special Examination Curriculum’ and the second
‘Special Examination for Registration as a Veterinarian – General
Information’.  The ‘Curriculum’ makes it clear that the special
examination consists of two parts – a three-hour written

examination (consisting of three sections, whose subject-matter is
specified); and a practical/oral examination.  At its foot the
document states:
‘Candidates must obtain a sub-minimum of 40% in both sections of the
evaluation procedure and registration will follow on ratification of results by
SA Veterinary Council.’

The ‘General Information’ gives details such as application
procedures, venue, enrolment dates and examination fee.  Its
concluding section is ‘Special examination information’:
‘7.1 The examination consists of two parts namely:
a three hour written examination and a practical/oral examination
as set out in the Curriculum.
7.2 A minimum mark of 40% must be obtained in both the written and
practical/oral examination.
…’

[5] Dr Szymanski then applied to write the special examination and
paid a registration fee.  He states in his founding affidavit that he
believed on the basis of these letters that he ‘needed a minimum
of 40% in the written and practical/oral examination in order to be
registered’.
[6] In August 1998 he attended the Council’s preparatory course.
There he saw a letter of 31 July 1998 the Council had sent to a
colleague on the course (he says he received his own copy only
later).  The letter enclosed the ‘venues, dates, times, template,

rules and list of procedures’ for the upcoming examination.  It
urged candidates to contact the Council should they require any
further information.  The attachments included a document
entitled ‘SAVC Registration Examination: Administrative Rules’.
This stated:
‘3.13 A subminimum of 40% is required for each section and the
practical/oral examination as well as a final combined mark of at least 50%
in order to pass the Examination for registration with the Council.
3.14 Council does not accept responsibility for incorrect information
obtained from unauthorised persons on examinations arrangements/or
results.  All enquiries must be made to the Secretariat.’

[7] Dr Szymanski states that he was ‘immediately concerned’ to read
this document – but considered that it ‘must be a standard form
attached to all such notices and aimed at the usual registration
examination and not the special examination’.  To put his mind at
ease, however, he approached Rautenbach and asked him for
‘clarification as to the correct position with specific reference to
what the pass requirement was, ie either an average of 50% on
the specially combined mark or 40% on the oral/practical and 40%
on the written exam’.  He states that Rautenbach undertook to
approach the Council.  The next day Rautenbach reported back
that he had discussed the matter with its president, Professor
Terblanche, who had informed him that candidates writing the

special examination could ignore the ‘Administrative Rules’, since
these had been sent in error to special entrants.  Dr Szymanski
says he was now convinced that to pass he needed only 40% in
each of the oral/practical and written examinations.
[8] The Council also sent out a letter dated 14 August advising
candidates that, having been told in June 1997 that a sub-
minimum of 40% was required in only the written and oral
examinations (as a whole), they should ignore the further
suggestion in the July 1998 letter that a sub-minimum was
required in each section of each examination (even though the
latter was in accordance with Council policy).  Dr Szymanski
claimed to have received this letter only after the examination
(which the Council disputes).  He says it took him ‘completely by
surprise’ and that he could not believe that the Council could
‘send such a notification’ after the examination, which he had sat
with the aim of obtaining only 40%.
[9] The Council in its opposing depositions strongly denied that,
properly interpreted, its letters could mean that the pass mark was
only 40%.  Even more emphatically, the Council disputed in detail
that in August Rautenbach ever discussed the overall pass mark

with special examination entrants.  On its version, the only
question Rautenbach discussed with them, and the only issue he
raised with Terblanche, was the apparent stipulation (suggested
in the ‘Administrative Rules’) that the sub-minimum requirement
applied not only to the written paper as a whole, but to each
section of it.  It was on this issue that Rautenbach, after consulting
with Terblanche and the Council’s assistant registrar, Ms Havinga
(who faxed a contemporaneous query to the Council’s
examination officer, Professor Veary), gave the assurance that
the sub-minimum did not apply to each section.
[10] The Council’s president, Terblanche, Rautenbach himself and
Havinga, attested to these averments.  Havinga attached her
memo to Veary.  It deals with the confusion about the application
of the sub-minimum requirement to each section of the written
examination – but makes no reference to the overall pass mark.
[11] These affidavits confronted the Court below with two connected
issues.  The first was a preliminary question – did Dr Szymanski’s
founding papers make out a case that his belief that the pass
mark was 40% was reasonable?  Unless on his own account
(leaving aside for the moment the Council’s affidavits), he made

out such a case, there could be no question of his relying on a
‘legitimate expectation’.  But even if he passed this hurdle, the
second question was whether, given the Council’s denial that the
overall pass mark was ever discussed, he was entitled to relief on
the papers as a whole.
[12] In answering both questions the starting point is of course that
the Council is a statutory body2 to which the constitutional
requirements of just administrative action applied.  These entitled
Dr Szymanski to action from the Council that was ‘lawful,
reasonable and procedurally fair’.3
[13] The first question concerns the bare case an applicant must
make out to be able to invoke the legitimate expectation doctrine.
The second question raises elementary issues about the conduct
of motion proceedings.  In my view both questions cannot but be
answered against Dr Szymanski, and in granting him relief the
Court below strayed far from a proper approach.

(a) Basic requirements for a legitimate expectation

2 Established under s 2 of the 1982 Act.
3 1996 Constitution s 33.  The Promotion of Administrative Justice Act 3 of 2000 (s 3(1) of which
explicitly refers to ‘legitimate expectations’) came into force on 30 November 2000, after the
events in issue.

[14] The order the Court below granted went very far indeed.  It did
not merely set aside the Council’s decision about the pass mark.
Nor did it remit the matter to the Council to reconsider its decision
that Dr Szymanski had failed.  There was no finding – and no
basis for a finding – that the Council had acted in bad faith or was
unable, unwilling or unfit to perform its duties.  The order granted
nevertheless by-passed the Council and conferred on Dr
Szymanski a statutory benefit (registration as a veterinary
surgeon) in respect of which the legislature entrusted the Council
itself with heavy responsibilities.4
[15] The propriety of the order given in this form was open to
serious question, not least because it is by no means clear that a
legitimate expectation can found an extra-procedural entitlement
such as the substantive benefit claimed here.  Though this Court
has recently cautioned against an over-hasty answer to this
‘difficult and complex’ issue, and has suggested that the
substantive legitimate expectation doctrine may have been
developed to deal with problems of English law that do not exist in

4 1982 Act sections 20 and 22 to 28.

our law,5 this case does not require us to resolve the issue.  This
is because Dr Szymanski’s case was deficient in its most basic
essentials.
[16] His case was that the Council had created an expectation, in
the first instance in its correspondence, that the pass mark for the
special examination was 40%.  But this is not so.  Neither the
1997 nor the 1998 documents, nor those documents taken
together, represent that the pass mark is 40%.  The ‘Curriculum’
of June 1997 refers explicitly to the ‘sub-minimum’ of 40% that
candidates must obtain in both the written and oral examinations.
A ‘minimum’ means the least permissible or possible.  A ‘sub-
minimum’ therefore suggests an additional requirement below the
minimum, and in argument counsel for Dr Szymanski rightly
conceded that ‘sub-minimum’ entailed that there must be an
additional applicable minimum.  This by unavoidable inference
had to be one above the sub-minimum.
[17] That is exactly what the Council conveyed when it said in June
1997 that candidates must obtain a ‘sub-minimum’ of 40% in both
the oral and written examinations.  The other minimum

5Meyer v Iscor Pension Fund, 391/2001, decision of 28 November 2002, para 27 (Brand JA,

contemplated was the overall pass rate, which the ‘Curriculum’
does not mention, but which by implication was clearly not 40%.
[18] It is true that the ‘General Information’ of June 1997 does not
refer to a ‘sub-minimum’, but merely to a ‘minimum’ of 40%.  But,
equally, it does not state that the pass mark is 40%.  No Council
document contains such a representation.  At best for Dr
Szymanski (and at worst for the Council) the varying statements
about minima and sub-minima created confusion.  Counsel for Dr
Szymanski was driven to charge the Council with responsibility for
‘too many mistakes and misperceptions’.  But subjective
confusion by itself is no basis for a legitimate expectation.  Still
less can misinterpreting the words or actions of an authority give
rise to a legitimate expectation.6
[19] The requirements relating to the legitimacy of the expectation
upon which an applicant may seek to rely have been most
pertinently drawn together by Heher J in National Director of
Public Prosecutions v Phillips and Others.7  He said:

Harms JA, Cameron JA, Navsa JA and Jones AJA concurring).
6 De Smith, Woolf and Jowell Judicial Review of Administrative Action (5 ed 1995 by Woolf and
Jowell) para 8-055, citing immigration appeal cases not available in the Court’s Library or on-line.
7 2002 (4) SA 60 (W) para 28.

“The law does not protect every expectation but only those which are
'legitimate'. The requirements for legitimacy of the expectation, include the
following:

(i)
The representation underlying the expectation must be
'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf
and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425
para 8-055). The requirement is a sensible one. It accords with the
principle of fairness in public administration, fairness both to the
administration and the subject. It protects public officials against the risk
that their unwitting ambiguous statements may create legitimate
expectations. It is also not unfair to those who choose to rely on such
statements. It is always open to them to seek clarification before they do
so, failing which they act at their peril.

(ii)
The
expectation
must
be
reasonable:
Administrator,
Transvaal v Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith,
Woolf and Jowell (supra at 417 para 8-037).

(iii)
The representation must have been induced by the decision-
maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney-
General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h -
j.

(iv)
The representation must be one which it was competent and
lawful for the decision-maker to make without which the reliance cannot be
legitimate: Hauptfleisch v Caledon Divisional Council 1963 (4) SA 53 (C)
at 59E - G.”

[20] Adopting and applying this exposition, which is supported also
by the decision of the Constitutional Court in President of the
Republic of South Africa and Others v South African Rugby
Football Union and Others,8 it is plain that Dr Szymanski’s case
was defective from the outset.  He may subjectively have had an
expectation.  But his expectation fails to meet criteria (i) and (ii)
(making it unnecessary to consider any further requisites).  There
was no representation that the pass mark was 40% – let alone a

8 2000 (1) SA 1 (CC) para 216, referring to the reasonableness requirement, and stating that the

clear, unambiguous and unqualified representation.  Nor was Dr
Szymanski’s expectation to that effect reasonable.
[21] It is worth emphasising that the reasonableness of the
expectation operates as a pre-condition to its legitimacy.9  The
first question is factual – whether in all the circumstances the
expectation sought to be relied on is reasonable.  That entails
applying an objective test to the circumstances from which the
applicant claims the expectation arose.  Only if that test is fulfilled
does the further question – whether in public law the expectation
is legitimate – arise.  In the present case, it was not in my view
reasonable for Dr Szymanski to conclude on the basis of the June
1997 letters from the Council, however ambiguous or confusing
they may have been, that the pass mark was 40%.  No legitimate
expectation could therefore have been created.
[22] Certainly the ‘Administrative Rules’ the Council sent out in July
1998 removed any doubt there may have been.  These stated that
the sub-minimum was required in each of the oral and written
parts in addition to a combined mark of at least 50%.  Dr

question is more than the factual question whether an expectation exists in the mind of a litigant
‘but whether, viewed objectively, such expectation is, in a legal sense, legitimate’.
9 See Lord Diplock’s speech in Council of Civil Service Unions and others v Minister for the Civil
Service [1984] 3 All ER 935 (HL) at 949h-j.

Szymanski on his own account saw this document before taking
the examination, and realised that it was at odds with the
impression he said he gained from the previous correspondence.
He claimed however to have concluded that the ‘Rules’ were
inapplicable, and to have received confirmation of his impression
from a conversation with Rautenbach.  This entails consideration
of the second aspect of the case, namely the extensive disputes
of fact that appear from the affidavits.

(b) Disputes of fact in motion court proceedings
[23] It is an elementary rule of motion proceedings that an applicant
cannot succeed in the face of a genuine dispute of fact that is
material to the relief sought.  Conflicting averments under oath
cannot be tested on affidavit but only by oral evidence.  Nearly 80
years ago Innes CJ explained that
‘The reason is clear; it is undesirable in such cases to endeavour to settle
the dispute of fact upon affidavit.  It is more satisfactory that evidence
should be led and that the Court should have an opportunity of seeing and
hearing the witnesses before coming to a conclusion.’10

[24] Innes CJ added a significant qualification: ‘where the facts are
not really in dispute … there can be no objection, but on the

contrary a manifest advantage in dealing with the matter by the
speedier and less expensive method of motion’.11  This
qualification, endorsed in the subsequent classic expositions on
the subject,12 led to a gradual but not inconsiderable relaxation of
the criteria for determining whether despite a factual dispute relief
can be granted in affidavit proceedings.  Most notably, Corbett CJ
in Plascon-Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd13
amplified the ambit of uncreditworthy denials that would not
impede the grant of relief.  He extended them beyond those not
raising a real, genuine or bona fide dispute of fact, to allegations
or denials that are ‘so far-fetched or clearly untenable that the
Court is justified in rejecting them merely on the papers’.14
[25] This much is elementary, but necessary in view of the course
the proceedings took in the Court below.  The case involved
review of a decision of a statutory body.  The applicant therefore
had no choice but to proceed by way of notice of motion.15  But
once the Council had raised a genuine dispute about Dr

10 Frank v Ohlsson’s Cape Breweries Ltd 1924 AD 289 at 294.
11 pp 294-295.
12 Peterson v Cuthbert & Co Ltd 1945 AD 420 428; Room Hire Co (Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162.
13 1984 (3) SA 623 (A) at 634-635.
14 Drawing on the minority judgment of Botha AJA in Associated South African Bakeries (Pty) Ltd
v Oryx & Vereinigte Backereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 924A.

Szymanski’s factual exposition, one that was material to the relief
he sought, it was not proper for the Court to grant him relief on the
papers.  The disputed issues should have been referred for the
hearing of oral evidence, or for trial.16
[26] Provincial division practice may sometimes be robust (in my
view often rightly so) in applying Corbett CJ’s category of ‘far-
fetched or clearly untenable’ denials.  But the approach in the
present case went far beyond robust.  Relief was granted despite
the Council’s comprehensive and detailed denials, supported by
contemporaneous notes and correspondence.  The judge below
considered that the matter could be approached on a ‘balance of
probability’, and concluded that it was ‘improbable’ that any
dispute existed with regard to the application of the minimum
requirement (as opposed to the pass mark).  In this he erred
appreciably, and to the detriment of all the parties, including Dr
Szymanski, who has been put to the expense of defending a
judgment on appeal in circumstances where it was extremely
difficult to do so.

15 Rule of Court 53.
16 Rule of Court 6(5)(g).

[27] As pointed out earlier, the Council denied that the pass mark
had ever been discussed with special examination entrants.  This
much Dr Szymanski’s counsel accepted.  But he contended that
Terblanche and Rautenbach failed to deny explicitly that
Terblanche informed Rautenbach that July 1998 ‘Administrative
Rules’ had gone out in error.  He also sought to demonstrate
through detailed analysis that the document pertained to the
Council’s ordinary examinations, and not the special examination
at issue here.  Hence he contended that Dr Szymanski was
entitled to conclude that the ‘Rules’ had been sent in error, and it
was likely that Rautenbach had told him so.
[28] These submissions are incorrect.  First, Terblanche and
Rautenbach specifically deny that examination entrants were ever
told that the ‘Administrative Rules’ could be ignored or were sent
out in error.  Terblanche (the main deponent authorised by the
Council) denies ‘each and every allegation’ in the relevant portion
of Dr Szymanski’s account.  He also denies ‘particularly’ that he
indicated to Rautenbach, or that the latter communicated to the
students, that the rules had been sent in administrative error, or
that any of the rules could be ignored.  Rautenbach’s subsidiary

deposition confirms that of Terblanche.  Rautenbach adds ‘more
particularly’ that the only discussion he ever had with Dr
Szymanski concerned the application of the sub-minimum to the
different sections of the written examination, and that it was never
indicated to him that Dr Szymanski was under the impression that
the 50% pass mark did not apply.  Hence it was never discussed.
[29] Second, as I have shown, the Council’s explicit and detailed
denials rendered the matter incapable of decision by affidavit on
the probabilities.  At best for Dr Szymanski, the apparent
discordance between the examination format the ‘Administrative
Rules’ envisaged and the special examination format gave rise to
confusion.  This of course is why he approached Rautenbach,
with an upshot that brings us back to the irresoluble conflict
between the depositions.
[30] The reasons set out earlier also entail that Dr Szymanski’s
attempt to invoke what he called a ‘statutory contract’ between
him and the Council regarding a 40% pass mark must fail.  The
Council made no offer and there was thus none to accept.  For
similar reasons there can be no question of an estoppel.

[31] In these circumstances the relief should plainly not have been
granted.  There was some difference before us as to whether
either party asked the Court below to refer the matter for
evidence.  In his written argument counsel for Dr Szymanski
stated that he invited the Court below during argument to refer the
matter for the hearing of evidence ‘should it have deemed it
necessary’.  But in argument he correctly did not persist with this.
[32] To summarise: on Dr Szymanski’s own averments his
correspondence with the Council did not establish that it
represented to him that the pass mark was 40%.  And his belief
that this was so was not reasonable.  No question of a legitimate
expectation could therefore arise.  In addition, the Council’s
detailed denial of his allegation that one of its members told him to
ignore the document making it clear that the overall pass mark
was 50% raised a real and substantial dispute of fact that could
not properly be decided on the papers.  The application therefore
had to fail.
[33] The appeal succeeds with costs.  The order of the Court below
is set aside.  In its place there is substituted:

‘The application is dismissed with costs.’

E CAMERON

JUDGE OF APPEAL

CONCUR:

HOWIE P
OLIVIER JA
STREICHER JA
LEWIS JA