The business organisation Sakeliga held a live panel discussion on its Facebook page on Tuesday, March 30, 2021, during which various focus points around the controversial Expropriation Bill and amendments to Article 25 of the Constitution were discussed. This follows two strong parliamentary submissions by Sakeliga during last week’s public hearings. Several issues that Sakeliga highlighted during his presentation were further examined. The participants at this event were Piet le Roux, CEO of Sakeliga, prof Koos Malan, Professor of Public Law at the University of Pretoria and Martin van Staden, legal fellow at Sakeliga.
Van Staden’s comments took note of the phenomenon of fraus legis – a misrepresentation in the law with a view to deceiving the law itself and frustrating the operation of the law. In the context of expropriation without compensation, it boils down to the fact that, if Parliament decides to proceed with the amendment of the Constitution to allow so-called “expropriation without compensation”, it will be an act in fraudem legis, as expropriation and compensation are inseparable and expropriation at “zero value” actually amounts to confiscation or forfeiture of assets. In other words, when it comes to so-called “expropriation under compensation”, it is actually the forfeiture of assets to the state under the guise of the term “expropriation”, which has always been accompanied by compensation.
In this vein, Parliament would, under the banner of an indisputable notion of “expropriation”, update a disputable, unconstitutional principle – confiscation of landowners’ rights – to the Constitution. It thus moves away from expropriation in its correct sense, to the domain of asset forfeiture like when the state typically confiscates assets used during a crime. This means that, if the Constitution is amended to provide for so-called expropriation without compensation, the amendment will be tainted by fraud. This is, ipso facto, invalid. Constitutionalists of all streaks from civil society, here and abroad, must oppose the amendment and must work tirelessly to repeal it and to restore constitutional legitimacy.
Professor Malan has consistently argued that the proposed amendment to the Constitution runs counter to the fundamental idea of constitutionalism, because it does away with the value of citizenship by reducing people to subjects of the state who must be content with the state’s unbridled power.
“You can describe any action with a pleasant-sounding etiquette…but the Parliament that implemented it [in the first place], actually detracted from the inherent nature of the constitution as such,” Malan said. “In form it may still be a constitution, but in essence it is something else.”
Malan emphasises that, since the Constitution did away with the principle of parliamentary sovereignty in the 1990s, the acceptance of expropriation without compensation would, even with a two-thirds majority vote in the parliament, be inherently unconstitutional because it would do away with the fundamental tenets of a constitutional state and constitutionalism.
The participants agreed that, due to organised civil opposition to expropriation without compensation that extends across demographic boundaries, as well as due to exuberant economic realities, the government will not be able to implement such a constitutional amendment.
“The point is that we should not think that all the power lies with the government to do what it wants in terms of a constitutional amendment. Power is spread throughout the community,” says Malan.
In summary, Le Roux pointed out that constitutional practice always weighs more than the unconstitutional text and that civil society will not, under any circumstances, accept expropriation without compensation, or confiscation of assets, as practice in our constitutional order. An amendment to the Constitution that paves the way for illegal expropriation will be opposed in all legal ways.
Watch the panel discussion here:
Watch Sakeliga’s submissions to Parliament on the proposed amendment to the Constitution here.