Supporters of Reclaim the City and Ndifuna Ukwazi chanted on the steps of the Western Cape High Court. Photo: Madison Yauger
26 November 2019
Those fighting for social housing on the Tafelberg site were asking the Western Cape government to spend money on people who had jobs and accommodation rather than on the homeless, the advocate for the province told the Western Cape High Court on Tuesday.
On Monday the court heard argument that the government had failed to address spatial apartheid.
Tafelberg is the site of a former school in Sea Point on Cape Town’s Atlantic coast. Housing activists, via the organisation Reclaim the City (RTC), want it to be developed into housing for Cape Town’s low-income residents who work in Sea Point. The provincial government on the other hand wants to sell the property for the development of a private school (Phyllis Jowell Jewish Day School).
Presenting the province’s argument on Tuesday, Advocate Eduard Fagan argued that 70% of the provincial budget goes to education and healthcare, leaving around 30% for everything else. “We can only give more to housing at a cost to education,” said Fagan. He said the provincial department of human settlements spent its entire budget each year and received a clean audit.
Fagan said the Tafelberg sale would raise R135 million, which would be used towards education. Regarding its use for social housing, Fagan noted the property’s size of 1.7 hectares. “The finding of the Western Cape government that the property is sub-optimal, stands,” he said.
Fagan said the applicants – Reclaim the City and the Ndifuna Ukwazi (NU) Law Centre – were asking the province “not to spend so much of the housing budget on the homeless, but rather on social housing for people who have jobs and accommodations.”
He said the City of Cape Town had put the matter succinctly: “100 people in CBD or 10,000 elsewhere?”
“It’s always a balancing act’,” Fagan continued. He commended civic organisations dedicated to addressing spatial apartheid, saying “one respects that entirely”, but said people with no homes were not being represented by those organisations in this case, but rather by the City and the province.
Earlier, advocates representing Reclaim the City and the Ndifuna Ukwazi Law Centre argued that the Province and City had been unable to implement their housing policy and lacked an overarching plan to make land available for affordable housing in central Cape Town.
The National Department of Human Settlements has also launched an application against the Western Cape government, which is being heard together with Reclaim the City’s application. Advocate Ismail Jaime, for the national department, continued his arguments from Monday, arguing that the province had failed to coordinate with the national government on the sale of Tafelberg.
“The principal point is the national minister was never consulted about it,” Jaime said.
Judge Patrick Gamble said the fact that the province hadn’t given notice of the sale to the chief justice or department of public works was “inconceivable”.
More than 30 people filled the gallery, watching intently as each advocate stood up to make their case.
Advocate Thabani Masuku, also speaking for the national Department of Human Settlements, argued that because the initial disposal notice did not accommodate all three local languages – Afrikaans, English and IsiXhosa – it was constitutionally invalid. Masuku said the subsequent notices that did use all three languages “did not address the original sin.”
Advocate Emma Webber spoke next, representing the Social Housing Regulatory Authority. Webber argued that the province made the decision to sell Tafelberg based on a false determination by the City. The City determined it would be “irrational and unreasonable” to use Tafelberg as social housing because it fell outside the restructuring zone (for social housing) and would not be grant-funded. Webber argued Tafelberg should have been included in the restructuring zone since the wording was “CBD and surrounds”.
Webber emphasised the government’s obligation to address spatial apartheid. She said the City’s argument that the money could go further for housing outside the city centre did not take into account “spatial integration, access to transport, education and the benefits of mixed neighbourhoods across race and income level”.
After the lunch break, Equal Education (EE) presented an argument as a friend of the court. “The right to housing affects a range of other rights, such as learners’ right to education”, said Advocate Janice Bleazard.
Bleazard pointed out the best schools were in the city, not in townships or informal settlements, and learners who choose to better their education must commute long distances. Learners who answered an EE questionnaire said they had to travel an hour and a half to get to school, and more than two hours to get home. Relying on inconsistent and costly public transportation caused them to miss school, as well as putting their safety at risk, since many must travel alone. Few learners could participate in after-school activities, and many did not have time to complete their homework.
She also noted many working-class parents who lived in Sea Point must live in back rooms separated from their children.
“The Western Cape government has failed to see the intersection between these rights,” said Bleazard.
Judge Monde Samela said the point Bleazard raised was important. “It’s a very sad story, that we are still having such problems in Cape Town,” he said.
Responding to the arguments made by Fagan, executive director of Ndifuna Ukwazi Mandisa Shandu said, “I think to say only a certain band of people require assistance is misplaced. The most urgent needs are always a priority, but we need to put some energy and breath behind a vision of a different future.”
“At the end of the day the issue is huge. It’s inherited from colonialism through apartheid, and we ought to have a complex multi-pronged approach. Today’s case is about social housing, but it’s broader than that.”
RTC and NU are seeking an acknowledgement of failure by the government and a plan outlining how they will address spatial apartheid in the future. The case will continue on Wednesday with arguments from the province, the City and Phyllis Jowell Jewish Day School.
The hearing is expected to be completed on Thursday 28 November.