An inclusionary housing perspective on spatial justice : location, affordability, and the South African Constitution

Abstract

This thesis argues that the implementation of inclusionary housing in South African law will affect property rights in the form of landownership and expected earnings. By invoking the non-arbitrariness test that was adopted by the Constitutional Court in the FNB decision, the thesis illustrates that the factors mentioned in the non-arbitrariness test can be used to understand the scope of the state’s obligations in fulfilling the right of access to adequate housing. The symbiotic nature of the relationship between the right to property (section 25) and the right of access to adequate housing (section 26) is therefore underscored. In drawing this link, I rely on the principle of spatial justice that is enshrined in the Spatial Planning and Land Use management Act (SPLUMA) to show that the implementation of inclusionary housing requires a more inclusive reading of spatial justice than what the Act envisages. I argue that to effectively implement inclusionary housing, the owner’s right to exploit property for economic benefit should be balanced by a housing beneficiary’s right to well-located, affordable housing. While the South African legal response to the problem of homelessness has emphasized affordability of housing, location has largely been overlooked. To satisfy the non-arbitrariness test for the deprivation of property rights, it must be shown that the imposition of inclusionary housing requirements on property developers will lead to housing that is both affordable and well located. Appropriate building and rent regulation measures can lead to affordable and well located housing in the South African legal context, but only if these measures recognize that a developer is not ordinarily entitled to the most profitable use of her property. As currently conceptualized, the principle of spatial justice in SPLUMA gives owners excessive protection against state interference with their property rights by insisting that the spatial justice principle must be read together with the principles of sustainability and effectiveness. The thesis concludes that SPLUMA nevertheless lays a foundation for the implementation of inclusionary housing in South Africa because it requires municipalities to include crucial information (such as estimates of the level of unemployment, family sizes and expected economic activity) in their Municipal Spatial Development Frameworks (MSDFs). MSDFs will play the role of providing sufficient reason for regulating developers’ property rights (especially the right to exploit property for economic benefit) in line with the idea of substantive non-arbitrariness envisaged in FNB