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n Tydskrif vir die Suid-Afrikaanse Reg - The temporary expropriation of a use right as interim measure in the South African housing context (part 1)
Two distinct but related constitutionally entrenched objectives that are directed at accommodating the most vulnerable and poor South Africans in getting access to a space to live dignified lives are currently failing miserably. Firstly, the government's redistribution programme is currently being criticised for its inadequate progress and lack of appropriate measures to give effect to section 25(5) of the constitution. It is inherently crippled by both its general bias towards rural land, effectively disregarding the plight of the homeless in urban areas, and its "willing buyer, willing seller" policy, which has effectively turned the entire programme into a free market approach where land can be put into the hands of the previously disadvantaged only through formal negotiations with existing landowners. Consequently, the state's power to expropriate property for this land reform objective has not seen the light of day, despite clear constitutional authority to do so at below market compensation.
Secondly, the case law indicates a pressing housing shortage for the socio-economically weak in urban areas, which has been defined as an emergency situation if evictees would be rendered homeless. Clearly, the eradication of homelessness is therefore a state priority that should receive the required level of attention through properly formulated policies and laws, promulgated under the auspices of both the redistribution programme and the constitutional housing provision. In urban areas, the objectives of these constitutional provisions, namely sections 25(5) and 26, must be read together to ensure that appropriate residential structures are redistributed for households' housing needs. In some instances the state's housing obligation will be of a temporary nature, such as emergency housing, and the question then arises how the state can appropriate residential structures for its interim housing needs.
The aim of this article is to consider one mechanism, namely the temporary expropriation of a landowner's use right, to determine whether this form of expropriation can be implemented by the state to appropriate both vacant inner-city buildings and portions of refurbished buildings for emergency housing purposes. The temporariness of this option and the fact that it will affect only one of the owner's entitlements, namely the right to use, makes it appealing, as it will suit the needs of the state and the desperately homeless. Even though a number of laws and a prominent constitutional court judgment have recognised the existence of such a form of expropriation in South Africa, it has received limited consideration in the literature. It is therefore apt also to analyse the theoretical pitfalls associated with this type of expropriation in American law, where its constitutionality has been both tested in a number of cases and theorised by leading academics before turning to the question whether it would be constitutionally permissible to adopt it in the South African housing context.
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