A new article in a peer-reviewed journal claims that the South African government’s confiscation plans — also known as expropriation without compensation, or EWC — as it currently stands, amounts to legal fraud (fraus legis), because it is attempting to conceal the reality of EWC with a fictional disguise.
The article, “Fraus legis in constitutional law: The case of expropriation ‘without’ or for ‘nil’ compensation”, was published in the Potchefstroom Electronic Law Journal on 28 June 2021, after a peer-review process between 12 March and 2 May.
Martin van Staden, the author of the article, is a Legal Fellow at Sakeliga and a member of the Rule of Law Board of Advisors of the Free Market Foundation. Both Sakeliga and the Free Market Foundation are noted opponents of EWC. Van Staden has a master’s degree in law.
It is claimed that Parliament’s use of the terminology of expropriation “for nil” compensation is nothing more than a façade for expropriation “without” compensation. It is generally agreed, by Parliament as well, that expropriation “without” compensation is impermissible, as it does not align with international practice in expropriation law and contravenes basic assumptions of constitutionalism. The advice by some lawyers to Parliament has been to paper over this reality by simply arguing that there will be compensation — the amount of compensation will however be zero rands. Property is therefore not confiscated, but expropriated for an amount of compensation, being nil.
Van Staden argues that this is a fraudulent misrepresentation of the reality of what government proposes, and that the courts must have regard to the true nature of the proposed constitutional amendment to allow for EWC, rather than its purported nature. In so doing, argues Van Staden, the courts must discover the unconstitutionality of EWC, because secure property rights are required by international law (including treaties and customary international law), and by the logic and structure of South Africa’s Constitution.