A decade-long legal battle over a prime property in the Cape Town suburb of Sea Point is set to culminate at the Constitutional Court next month.
According to a legal expert, the case could have implications for how local governments address spatial apartheid.
The original case was heard in the Western Cape High Court in 2019. In 2020, the court set aside the government’s decision to sell the site, which had been earmarked for affordable housing, to a day school for R135m.
The Western Cape government appealed the judgment and won at the Supreme Court of Appeal (SCA) last year. “It is difficult to imagine a more fair and balanced procedure in terms of which an intended disposal of state land can be conducted,” said judge Nambitha Dambuza.
Tanveer Jeewa of Stellenbosch University, a constitutional property law expert, tells the FM the case could clarify the state’s duties in undoing spatial apartheid in the absence of legislation.
We call for action, not empty promises. The provincial government has the power to initiate development on the Tafelberg site. The upcoming Constitutional Court challenge should not be
“Tafelberg [the Sea Point site] would be the first case, at the level of the Constitutional Court, to squarely address what the state’s duty to undo spatial apartheid actually entails, especially in the absence of legislation.”
So far, says Jeewa, most affordable housing, in the form of RDP houses, has been built on the periphery of cities, far from economic centres and places to find work. She says the judgment will clarify how the government can open land for social housing in prime economic centres.
Housing organisations Ndifuna Ukwazi and Reclaim the City want the Tafelberg site to be used for housing. “Not a single affordable housing unit has been constructed in the inner city of Cape Town,” they said in a petition signed by about 700 people.
“We call for action, not empty promises. The provincial government has the power to initiate development on the Tafelberg site. The upcoming Constitutional Court challenge should not be used as an excuse for inaction. Nothing prevents [Western Cape] premier Alan Winde from releasing Tafelberg for social housing today,” they said.
Developing Tafelberg for social housing, they say, offers a step towards building a city where everyone can live, work and prosper.
Jeewa says the Western Cape government is bound by the factors set out by the SCA with respect to what it needs to consider in making a decision regarding the sale or development of the Tafelberg property.
“The SCA has found that the procedure the Western Cape government follows is as fair and balanced as it could get, and the [provincial] government could follow the same procedure and come to a different outcome whereby it decides to use the property for housing.”
There is also the issue of whether Tafelberg is located in a “restructuring zone” which is required by the Social Housing Act. Jeewa says Ndifuna Ukwazi and Reclaim the City may argue that the provincial government’s decisions did not pay special attention to the needs of the poor and vulnerable groups.
“The Constitutional Court has long established that the court’s role in a reasonableness review is not to second-guess the policy choice of government, but simply to consider whether said choice is reasonable.
“This is an easier threshold to meet for the government since the court recognises that there is a wide range of possible measures that could be adopted by the state to fulfil its obligations to realise socioeconomic rights, and once the government shows that its decision is reasonable, the court will not interfere,” she says.
In response to questions from the FM, the Western Cape government says it has always been open to discussions with organisations on the issue of making more affordable housing opportunities available in the Cape Town city centre, across the province and in South Africa.
“These groups have interacted with the premier and his cabinet at many public platforms and have also registered as interested and affected parties in all of the processes around building affordable housing, which we welcome.
“But ongoing attempts by these organisations to obfuscate the matter and mislead the public are not helpful. They have consistently been disingenuous over this matter. This is not helping us to find common ground on this critical issue, and to help us address the housing needs of the many people who have registered on our housing waiting lists.
“In the case of the Tafelberg site, the SCA had confirmed that the processes followed by the Western Cape government in ensuring that the land was developed were lawful and correct.”
The Constitutional Court is set to hear the case on February 11.
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