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Allison Dunham

Bio: Allison Dunham is an academic researcher. The author has contributed to research in topics: Supreme court & Expropriation. The author has an hindex of 1, co-authored 1 publications receiving 13 citations.

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Journal ArticleDOI
TL;DR: In this paper, the authors provide guidelines for an interpretation of compensation for expropriation provisions which is more transformative than existing practice, and a comparative perspective with reference to Germany, the United States of America and Australia is put forward to offer alternative angles on the compensation question.
Abstract: Since the advent of constitutional democracy in 1994 South African courts have been faced with new interpretive imperatives. The courts have to reevaluate existing legislation with reference to the Constitution, as well as interpret the Constitution itself. Section 25 of the Constitution, "the property clause", is a telling example of this kind of provision. It protects property rights but at the same time provides for the expropriation of property, as long as such expropriation is duly authorised, is for a public purpose or in the public interest, is procedurally fair and provided that "just and equitable" compensation is paid. "Public interest" includes the nation’s commitment to land reform. Pre-constitutional expropriation law benchmarked market value as the fore-most determinant of compensation. This gave rise to a legal culture dominated by the belief that payment of an amount equating the market value of the property was the best way of duly compensating a property owner. The Constitution, however, lists market value as but one of several factors that need to be taken into account when compensation is calculated, and shifts the interpretive focus from the notion of "market value" to what would be "just and equitable" compensation in the particular circumstances of each case. The law regarding compensation for expropriation has therefore changed, but the legal culture seemingly not. If compensation is going to continue to be paid at market value in the land reform context, transformation is not going to succeed because the acquisition of land for land reform purposes will become too expensive. This raises the following question: Can section 25(3) of the Constitution together with related constitutional as well as statutory land reform measures, construed in a particular manner, have a transformative impact on land reform and, eventually, on the broader socio-economic reality in South Africa?This question is answered affirmatively, and this dissertation endeavours to provide guidelines to construe relevant constitutional provisions and applicable legislation in a transformative manner. It does so, first, by looking at pre-constitutional expropriation law in order to give a picture of the conventional legal culture of expropriation. The impact of the Constitution on expropriation law since 1994 is then assayed, concluding that constitutional democracy has had but a limited impact in this area due to the persistence of a legal culture placing too much emphasis on existing property interests and too little on transformation. A comparative perspective with reference to Germany, the United States of America and Australia is put forward in order to offer alternative angles on the compensation question. This is followed by a theoretical consideration of the question why compensation is paid, what is compensated, when compensation is due and how much is to be paid. This leads to a conclusion providing guidelines for an interpretation of compensation for expropriation provisions which is more transformative than existing practice.

18 citations

Book ChapterDOI
01 Jan 1992
TL;DR: In this article, the compensation problem is explored in the light of radical indeterminacy, selective perception and the nature and operation of the legal system, and the compensation principle is shown to be functional as psychic balm and legitimation of the institution of property and the basic organisation of society, and not the protection of particular property rights except selectively.
Abstract: In this chapter the compensation problem is explored in the light of radical indeterminacy, selective perception and the nature and operation of the legal system. The compensation principle is shown to be functional as psychic balm and legitimation of the institution of property and the basic organisation of society, and not the protection of particular property rights, except selectively. Conventional legal and economic treatment of compensation issues — for example, the conflicting, conclusionary and tautological taking issue — is thus shown not to reach the fundamentals of the system of property, the legal system and the roles thereof in society.

10 citations

Book ChapterDOI
01 Jan 1987
TL;DR: In this article, the authors present a survey of sovereign immunity issues in international commercial arbitration and address the specific problems associated with the execution of an international arbitral award sought by a private party against a state.
Abstract: This contribution to the survey of sovereign immunity issues in international commercial arbitration addresses the specific problems associated with the execution of an international arbitral award sought by a private party against a state. At the outset, we should stress that, in our opinion, only actual execution constitutes a separate phase from the arbitral proceedings. By contrast, recognition and enforcement of the award are the direct consequence and logical final step of the arbitral proceedings. Therefore, issues of immunity raised during recognition and enforcement procedures should be viewed as issues of immunity from jurisdiction.1 Hence, we shall consider the case of a state claiming immunity at the moment of actual enforcement of an award, once jurisdictional issues have been resolved and the arbitral award has been recognised. We shall refer to this case as immunity from execution. The immunity plea would then refer only to the state’s alleged immunity from enforcement by measures of execution against its property.

9 citations

Book ChapterDOI
01 Jan 1981
TL;DR: In this article, the compensation problem is explored in light of radical indeterminacy, selective perception, and the nature and operation of the legal system, and it is shown that compensation principle is functional as psychic balm and legitimation of the institution of property and the basic organization of society, and not the protection of particular property rights, except selectively.
Abstract: The compensation problem is explored in light of radical indeterminacy, selective perception, and the nature and operation of the legal system. The compensation principle is shown to be functional as psychic balm and legitimation of the institution of property and the basic organization of society, and not the protection of particular property rights, except selectively. Conventional legal and economic treatment of compensation issues—for example, the conflicting, conclusionary and tautological taking issue—thus is shown not to reach the fundamentals of the system of property, the legal system, and the roles thereof in society.

8 citations