On Friday 12 April, the Supreme Court of Appeal (SCA) upheld an appeal by the Western Cape government in the contested Tafelberg site, which activists want transformed into social housing units in Sea Point.

Friday’s judgement comes one year after the appeal — lodged by the provincial government — was heard by the SCA and then reserved.

Read more in Daily Maverick: SCA judgment still pending in critical Tafelberg housing case one year later

The court judgement was written by Judge Nambitha Dambuza, who said the province followed lawful processes to sell the land.

On 31 August 2020, the Western Cape gave a landmark ruling: the sale of the 1.7-hectare site in Sea Point was set aside. In addition, the court issued a declaratory order that the Western Cape government and the City of Cape Town failed constitutionally to provide access to affordable housing to people who qualified. The courts also ruled that the province and the City of Cape Town must draw up a combined policy, which would address this.

Read in Daily Maverick: Landmark Tafelberg ruling: Western Cape High Court strikes a blow against apartheid spatial planning

By September 2020, the province decided to appeal aspects of the ruling — 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”.

The court also found that the respondents — in this case, Ndifuna Ukwazi — did not plead, and the High Court did not identify any statutory provision that requires the provision of social housing at specific locations.

According to Dambuza’s written judgment, “It is difficult to imagine a more fair and balanced procedure in terms of which an intended disposal of State land can be conducted… Interested parties are afforded opportunity to comment on a comprehensive proposal, which includes not only the description of the property intended to be disposed of, but also the identity of the prospective purchaser, the value of the land, its current and intended use, the reasons why the offer has been accepted for further consideration, and the proposed purchase price, amongst other details”.

Dambuza went further: “All this while government is able to execute its responsibilities in relation to the land efficiently, transparently, and cost-effectively”. It was on this basis that the province’s appeal was upheld.

The Tafelberg site in Greenpoint. (Photo: Gallo Images/ER Lombard)

Tafelberg’s history 

The Tafelberg property, owned by the provincial government is situated in Sea Point. According to GroundUp, the site consists of an old school building and a block of flats. The site has been unused since 2014, following the evictions of the last resident who stayed in the block of flats.

In 2017, the provincial government, led by Premier Helen Zille sold the site to the Phyllis Jowell Jewish Day School for R135-million. The revenue from the sale would have gone to buying a building for the Western Cape Education Department. However, activists wanted the site to be used for social housing. Housing activists Reclaim The City and Ndifuna Ukwazi launched an application to halt the sale of the property.

Urban designer Azraa Rawoots’ impression of the proposed mixed-use and social housing development on the Tafelberg site. This impression was included in Ndifuna Ukwazi’s submission to Cabinet. (Graphic: Supplied)

The court heard various arguments when it sat over five days:

• On Day 1, lawyers for Ndifuna Ukwazi told the courts that both the province and the City failed — in 25 years — to provide social and affordable housing within the boundaries of the Cape Town CBD.
• On Day 2, Equal Education — acting as friends of the court — argued housing policies need to consider education, as learners could benefit from better schooling and commuting times if they lived nearer to schools within the CBD.
• On Day 3, lawyers for the City of Cape Town admitted there was no social housing built in the CBD in 25 years.
• On Day 4, GroundUp reported that lawyers for the Phyllis Jowell Jewish Day School said 44 affordable housing units would be built on the property, should the sale go through.
• On Day 5, the Social Housing Regulatory Authority claimed there was no consultation from the province on the property’s sale.

Currently, the provincial government owns the site after the school indicated it would not pursue the sale further.

In a statement after the ruling, the Western Cape government said it noted and welcomed the judgement — which confirmed that the process the provincial government followed was lawful and correct.

Ndifuna Ukwazi Law Centre head Disha Govender said after the ruling: “We are still digesting the judgment which upholds the Province and City’s appeal but are disappointed with the outcome and are considering appealing it to the Constitutional Court”.  Govender said that it must be emphasized that the SCA’s judgment does not change the fact that the sale of the Tafelberg site was set aside and is available to be used. DM

Daily Maverick has made changes to the story after publication for accuracy. We amended the headline, blurb and a sentence in the copy to reflect accuracy about aspects of the court order following another read of the court ruling as well as to include comment from an affected party.