Supreme Court of Appeal reserves judgment in Tafelberg matter

“At the heart of the matter is the government’s obligations to promote equitable access to land and to redress spatial apartheid” says housing activist

By Tania Broughton

20 February 2023

The Supreme Court of Appeal reserved judgment in landmark Tafelberg matter on Monday. Archive photo: James Stent

Western Cape housing activists filled the public benches at the Supreme Court of Appeal on Monday to hear arguments in a landmark housing case. The outcome of this case could impact the much-needed provision of affordable housing in central Cape Town and be a step towards dealing with “spatial apartheid”.

In 2015, the Western Cape government tried to sell the Tafelberg property in Sea Point, formerly the Tafelberg Remedial School, to a private school for R135-million. The sale was challenged by housing activists through protest and in the courts, and on 31 August 2020 the sale was set aside. The judgment was hailed as a landmark in the fight against spatial apartheid.

But since then, the 1.2-hectare site, owned by the Western Cape Government, has remained unoccupied and undeveloped.

On Monday, the arguments before Judges Nambitha Dumbuza, Dumisani Zondi, Ashton Schippers, Daisy Molefe and David Unterhalter focussed on the constitutional obligations of the Provincial Government and the City of Cape Town in disposing of public land and public participation in those decisions.

The outcome could have far reaching consequences and will be of importance in the debate over how public land is used and where social housing should be developed.

Housing movement, Ndifuna Ukwazi (NU) assisted Reclaim the City in its successful application at the Western Cape High Court. The Province and City are appealing parts of the judgment, including the finding that they failed to redress spatial apartheid.

“At the heart of the matter is the government’s obligations to promote equitable access to land and to redress spatial apartheid and injustice through the provision of affordable housing in central Cape Town,” said NU law centre director Disha Govender, in a statement.

“Almost three decades since democracy and until the launch of this matter, no affordable housing had been built by the Western Cape Government and the City of Cape Town in the primary spaces of exclusion and displacement - central Cape Town. The actions of government have left these spaces inaccessible to poor and working class Black (African, Coloured and Indian) people which is exacerbated by the continued sale of public land.”

NU said that while affordable housing was of utmost importance to poor and working class people, even those formally educated and employed were struggling to keep up with the increase in the cost of living in Cape Town, with properties along the Atlantic Seaboard costing up to R100-million. Without government intervention, nothing would change.

NU said feasibility studies had shown that social housing could be developed on the Tafelberg site. Instead, the Province, which owned a substantial portfolio of properties, was seeking to maximise financial returns from it.

The City, too, had adopted a policy of not providing social housing in the city centre.

The Western Cape Government, in its heads of argument, said fundamentally the High Court ruling reflected the view that it should be allocating and spending its housing budget differently. “This went beyond the principle of separation of powers - and the problematic nature of what the court did was illustrated by a subsequent judgment where it was determined that the City spends too much on social housing, and too little on emergency housing.”

The Province said it had no obligation, through either legislation or the Constitution, to provide social housing in “central Cape Town”.

The City, in its heads of argument, said the land did not belong to it and therefore had no say over whether it should be sold and who it should be sold to. “What the City did indicate was that it would welcome the land for housing purposes but it could not pay the commercially determined price.”

Judgment was reserved.