Test of patience as long wait expected for the Constitutional Court's judgment on Tafelberg site

It will be a test of patience for both the Western Cape Government (WCG), and housing activist organisation and law centre, Ndifuna Ukwazi i (NU), as they await judgment from the Constitutional Court in the highly publicised Tafelberg case.

The Tafelberg case, brought by NU and Reclaim the City (RTC), seeks to challenge the Western Cape government’s actions in redressing spatial apartheid in central Cape Town.

NU is calling for the use of the well-located Tafelberg property in Sea Point for affordable housing, and to address the city’s deepening housing crisis and asserting the constitutional duty to provide equitable access to land and housing.

The heart of the RTC application, brought by NU, lies in what the applicants see as a failure of the provincial government and the City of Cape Town to redress spatial apartheid in central Cape Town.

NU's application was prompted by the sale site to the Phyllis Jowell Jewish Day School.

Since 2016, housing activists had been trying to get the sale set aside. In November 2015, the province sold the plot of land that had formerly housed the Tafelberg Remedial School to Phyllis Jowell Jewish Day School for R135 million. The land had previously been earmarked for affordable housing.

The National Minister of Human Settlements together with the Social Housing Regulatory Authority also launched an application to review the Western Cape Government’s decisions to dispose of the Tafelberg site. (Minister of Human Settlements & Others v Premier of the Western Cape Province & Others – Case Number 12327/2017).

The matters were consolidated for hearing and were heard in late November 2019 in the Western Cape Division of the High Court, before Justices Gamble and Samela.

More than four years ago, on 30 August 2020, the Western Cape High Court handed down its landmark judgment in which it set aside the province’s sale of the Tafelberg site, and declared that the WCG and City failed to redress spatial apartheid in central Cape Town.

NU believes their case aligns with the recent Bromwell Street ruling, in which Ndifuna Ukwazi was also involved, which emphasised the state’s obligation to provide dignified housing solutions in well-located urban areas.

The legal battle between the Bromwell Street residents, the City of Cape Town, Woodstock Hub and Abahlali baseMjondolo also reached the Constitutional Court, which declared the City’s housing programme as unconstitutional and declared that the City provide housing within close proximity of Woodstock within six months.

The ConCourt ordered that the City unreasonably failed to adopt its own Temporary Emergency Accommodation (TEA) policy, to be implemented in conjunction with the National Emergency Housing Programme - and that it declined to consider providing TEA in the inner city.

It further ordered the City to provide Transitional Housing in the inner City for the evicted persons who have unlawfully occupied the land.

The City was directed to develop a reasonable Temporary Emergency housing for the applicants or Transitional Housing in Woodstock or Salt River or nearest to the property of Bromwell Street within six months of the order. The order was delivered in December 2024.

In the Tafelberg site matter, the province decided to appeal aspects of the Western Cape High Court ruling back in September 2020 — including the declaratory judgment, of which at the time, Premier Alan Winde and then MEC for Human Settlements Bonginkosi Madikizela said: “the court has made a range of orders that will fundamentally impact our ability to competently manage this province and govern it as an independent sphere of government, as envisaged by the Constitution”.

When the Supreme Court of Appeal’s (SCA) judgment came down, it upheld the appeal by the Western Cape Government.

The matter headed to the ConCourt on February 11 where the housing groups argued that the SCA was wrong in overturning the High Court’s judgment and orders.

NU has highlighted, however, that the orders reviewing and setting aside the decisions to dispose of the Tafelberg site, and the declaration of the disposal as unlawful are not being appealed.

The Western Cape’s Infrastructure MEC, Tertuis Simmers, and MEC for Social Development Jaco Londt announced in January that the province’s proposal for the redevelopment of a portion of the Tafelberg site, which they say, followed an internal departmental utilisation review process, as provided for by the Government Immovable Asset Management Act, 2007 (GIAMA).

However, the housing activists were unmoved against this announcement, with NU saying: “We do note that the manner in which the Province has made this announcement and purported decision continues to raise concerns about how it involves the public in decisions about the use of public land.

"Particularly in the context of this site, where there had been and remains calls for it to be used for well-located affordable housing to address the unabating housing and segregation crisis in this city.”

After heading to the ConCourt, judgment in the case has been reserved.

Head of Law Centre at Ndifuna Ukwazi, Disha Govender said: “The case deals with a number of complex and important legal issues that the Court has to consider so it may take some time before we receive judgment.

“We are hoping that the Court will find in our favour and grant the relief we have asked for which includes ordering the Province and the City to develop a comprehensive and co-ordinated plan to redress spatial apartheid in central Cape Town,” Govender said.

“Ultimately what we hope to see is poor and working class people of colour who have been structurally excluded gaining equitable access to land and adequate housing in central Cape Town which to date still remains mostly white. We want to see the social value of land being recognised. We want to see affordable housing in central Cape Town.”

Simmers said: “Irrespective of the outcome the Western Cape Government remains committed, where feasible, to using its immovable assets to facilitate the provision of affordable housing opportunities in well-located areas.”

theolin.tembo@inl.co.za