EWC: We will never accept an unconstitutional order
Le Roux argued that:
- “Constitutions are not legitimate foundational documents because they have been adopted in a certain way, but fundamentally because they conform to a certain basic structure and possess a certain basic content.”
- “Expropriation without compensation, properly understood, is confiscation, and therefore incompatible with the basic structure requirements of constitutionalism.”
- “Replacing the words ‘expropriation without compensation’ with ‘expropriation with nil compensation’ does not change anything of substance, and therefore merely invites Parliament to incriminate itself by misrepresentation, that is public law legal fraud.”
Elaborating on the matter of misrepresentation, Le Roux points to the legal doctrine of fraus legis:
“Fraus legis is the act of defrauding or evading the application of law. Usually applied to private law, the doctrine is nevertheless as applicable to public law. Its relevance lies in the draft Constitution Eighteenth Amendment Bill’s replacement of the term ‘expropriation without compensation,’ with expropriation where ‘compensation is nil’. This alternative wording is introducedconsistent with advice by Parliament’s Constitutional and Legal Services Office (CLSO) on 21 February, as if it matters substantially, when in fact it has no substantially different consequences, a fact acknowledged by the CLSO.
Le Roux concludes: “Sakeliga submits that the Constitution cannot be amended to facilitate confiscation as contemplated and remain a true constitution. It will lose its legitimacy in so far as it is so amended and effected and will regain that only after such an amendment and such effects are undone.