LETTER: “Without” vs “nil” compensation – A preposterous contention

Editor’s note: Today, 31 March 2021, Parliament’s Constitutional and Legal Services Office presented its legal opinion to Parliament about comments made by civil society during public hearings on the Constitution Eighteenth Amendment Bill, which will empower government to confiscate property without compensation. The CLSO, and many legal academics and commentators, has argued that this does not amount to confiscation or “expropriation without compensation”, but is simply expropriation where compensation may be “nil”. These are the comments of former judge and Chairman of the Rule of Law Board of Advisors, Rex van Schalkwyk, on this contention:

The contention that “nil” compensation does not amount to expropriation without compensation and is not unconstitutional because compensation is provided for is fatuous in the extreme: “nil” compensation is not, as the argument would have it, a type of compensation, it is the negation of compensation. It is compensation that cannot exist; it is “without” compensation. To demonstrate that it is something it would have to be shown what that something is, but it is not something, it is nothing. To suggest otherwise it would have to be demonstrated that, in this case, nothing is, in fact, something. If one were to say that the argument has nil value, could that be construed as a concession that there was some value to be ascribed?

This quality of argumentation is so puerile that it is embarrassing, but that is what one is forced into to defeat a preposterous contention.

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Rex van Schalkwyk

Rex van Schalkwyk is the Chairman of the Rule of Law Board of Advisors and a retired Judge of the Transvaal Provincial Division of the Supreme Court of South Africa.

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