Name: ID: Course: Subject: Instructor:

Keabetswe Molotsi 201000361 LLB260 LAW237 Administrative Law B. Maripe

Question: The principle of estoppel applies in somewhat of a contradictory fashion. While it seems to prevent the exercise of an authoritys discretion, on the other hand it advances the ends of justice. Discuss.

The substance of this question poses this issue: is the principle of estoppel in fact contradictory when it comes to the discretionary powers of certain authorities? Firstly, a definition of estoppel is necessary. The operation of the principle is that where a person acts to his or her detriment in reliance upon anothers statement or representation, then that other person is estopped from denying the truth of that statement or representation (Felix & Stott, 1997). Meaning that the representor is precluded form from denying or asserting anything to the contrary of what has been established as truth either by his own deed, act or representation. In the realm of administrative law, a problem arises when an authority has mistakenly granted permission to a certain party when there is an error in law or perhaps the authority acted beyond its powers. This sometimes means that they are estopped from changing their decision. In the English case of R v Home Secretary Ex parte Khan1, Khan and his wife wished to adopt a child from Pakistan. He then obtained from a Citizens Advice Bureau a standard letter from the Secretary of State stating that he may exercise his discretion and exceptionally allow a child to be brought here for adoption when satisfied on four specified matters. Despite meeting these requirements, Khans application was refused and it was shown that the Secretary of State took into account a matter not mentioned in his letter. The court held that any change in policy should have resulted in a hearing at which Khan could have made representations. The Secretary of State was under a duty to act fairly and was obliged to reconsider the matter on the basis of his letter, or if the new policy was to apply, Khan should have an opportunity of being heard. The Secretary had attempted to assert a requirement that had not been made know to the applicant. He was estopped from refusing Khans appeal without a hearing regarding the policy change, therefore it stands that estoppel will apply in a case where there is a legitimate expectation (Dingake, 2008). However, I can honestly say that apart from this very narrowly applied scenario, estoppel is very limited and rarely permitted. For instance, it cannot be invoked to legitimate illegal action by a public authority, to give an authority powers which it does not by law possess or to prevent the performance of a legal duty. The first instance is described in the case of South-Sea Corporation v Hodgson (Wickford) Ltd2. A company had bought land in reliance
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[1985] 1 ALL ER 40; [1984] 1 WLR 1337 [1962] 1 QB 416

on a statement made by the borough-surveyor that planning permission was not needed for use as a builders yard, but the company could not rely on this statement when the planning authority subsequently served an enforcement notice to prevent the continuation of such use. The surveyor did not have the authority to give such permission. You cannot give what you dont have and it would be contrary to good law to allow him to use powers he was not given. The case would have been different had the authority had the ability to delegate to the surveyor certain decision-making powers. This was the situation in Lever (Finance) v Westminster Corporation3, where a planning officer approved a submission for a variation to an already approved plan. The planning authority subsequently refused permission but the court held that they were bound because section 101 of the Local Government Act 1972 allowed for its functions to be discharged by an officer of the authority. In a case of statutory obligation and government policy, estoppel must be very cautiously considered. Lord Maugham had this to say in the Privy Council case of Maritime Electric Co. v. General Dairies Ltd4: [a court] should first of all determine the nature of the obligation imposed by the statute and then consider whether the admission of an estoppel would nullify the statutory provision. (Watson-Hamilton, 2008). In other words, the court must test if the nature of the statute forbids the operation of estoppel and apply this determination to the case at hand. The importance and significance of estoppel is undeniable for the upholding of natural justice. It would be unfair for a decision to be made, there having been a clear representation, and then suddenly be revoked again at the whim of an authority just by virtue of it having some extent of discretion. It is my submission that the extent to which estoppel limits the discretion of authorities is quite minimal. Within their realm of discretion, these bodies must adhere to certain conditions such as natural justice and accurate adherence to procedure. Considering this, I believe there is a fair balance between the upholding justice and authorities discretionary powers. It is only fair that when these conditions are not followed, people should be able to seek solutions like estoppel, especial in the interest of protecting their rights from being infringed upon.

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[1970] 3 ALL ER 496 [1937] 1 D.L.R 609 at 613; [1937] 1 ALL ER

Bibliography
Dingake, O. (2008). Administrative Law in Botswana. Gaborone: Mmegi Publishing House. Felix, A., & Stott, D. (1997). Principles of Administrative Law. London: Cavendish Publishing Limited. Watson-Hamilton, J. (2008, May 16). The Guarantees Acknowledgement Act and Equity. Retrieved March 15, 2012, from Ablawg.ca: http://ablawg.ca/wpcontent/uploads/2009/09/blog_jwh_bhaewani_abca_may2008.pdf