Fraus Legis in Constitutional Law : the case of Expropriation "Without" or for "Nil" compensation
Abstract
Fraus legis – defrauding or evading the application of law – is a
phenomenon well-known to students of private law, but its
application in public law, including constitutional law, remains
largely unconsidered. To consider whether a transaction, or, it is
submitted, an enactment, is an instance of fraus legis, an
interpreter must have regard to the substance and not merely
the form of an enactment. In 2018 Parliament resolved to amend
section 25 of the Constitution of the Republic of South Africa,
1996 (the Constitution) to allow government to expropriate
property without being required to pay compensation. While the
public and legal debate has since before that time been
concerned with "expropriation without compensation", the draft
Constitution Eighteenth Amendment Bill, 2019 provides instead
for expropriation where "the amount of compensation is nil". By
the admission of Parliament's legal services unit, this is a
distinction without a difference. But compensation and
expropriation are legally and conceptually married, and as a
result, it would be impermissible to expropriate without
compensation – instead, nil compensation will be "paid". How
does this current legal affair comport with the substance over
form principle, and is fraus legis at play? This article considers
the application of the fraus legis phenomenon to public law,
utilising the contemporary case study of the Constitution
Eighteenth Amendment Bill.
Collections
- PER: 2021 Volume 24 [71]