Constitutional Court exposes Cape Town’s empty affordable housing promises

James Styan’s response to a landmark Constitutional Court judgment feels more like political theatre than factual commentary. As chief of staff to Cape Town Mayor Geordin Hill-Lewis, Styan claims “undeniable progress” — yet he cannot provide a single photograph of affordable inner-city housing built during the eight years of this litigation. The reason is simple: not a single home has been constructed.

Instead, Styan is forced to rely on future plans. The trouble with relying on these plans, however, is that they are the same ones the City showed to the court eight years ago — since cancelled and reintroduced. Evidence of undeniable progress they are not.

Styan’s boss has less than three months left to develop more convincing arguments, because that’s the deadline ordered by the court for the Western Cape and City of Cape Town governments to provide a report documenting policies and progress in respect of the delivery of affordable housing in well-located areas, in particular, the inner city and surrounds.

These matters arise out of the Tafelberg School litigation, launched eight years ago after the provincial government changed its mind about using the school site in Sea Point for affordable and social housing, electing to sell it instead.

The province subsequently changed its mind again, cancelling the proposed sale of the land due to public pressure, but the litigation went ahead because it traversed a critical principle: the state’s duty to use public land and well-located housing to address spatial inequality and historical segregation.

The court’s judgment, delivered last Friday, was profoundly progressive, placing a constitutional obligation on the state to implement plans to eradicate historical spatial segregation by making geographical location a key consideration in decisions about new housing development.

The court further de-commodified public land and buildings, placing an onus on the state to prove that proposed property sales are reasonable in the context of its constitutional duty to spatial transformation.

The judgment sits alongside that in the so-called Grootboom matter in 2000 that affirmed the state’s responsibilities to take reasonable steps to provide access to adequate housing for the poor.

The right to the city

The Grootboom judgment is among South Africa’s most important pieces of jurisprudence; it has been cited in at least seven countries as well as by the European Court of Human Rights. Now, the Constitutional Court has added that, given our spatially segregated history, where people live matters. A significant portion of the judgment deals with what, nearly 60 years ago, the French father of spatial planning Henri Lefebvre termed “the right to the city”.

The right to the city guarantees three core rights: habitation, appropriation and participation. Issues that Capetonians know well, such as spatial injustice and inequality, including unequal access to land, directly hinder these rights.

In reply, Styan cites “about 4,000 affordable units are entering construction in Cape Town’s inner city, including at the Salt River Market, New Market Street (Foreshore), Pickwick (Salt River) and Fruit & Veg (CBD)”. These are the same developments cited in the City’s answering affidavits, in the Tafelberg litigation, deposed by the city manager in July 2018.

The city manager told the court: “It is a priority within the City to strive for greater inclusivity and affordable housing opportunities. This is earmarked for 11 City-owned sites in Salt River and Woodstock. It is estimated that this would allow for 4,000 low-income housing opportunities.

“A prospectus relating hereto has been released by the City. Central to the prospectus issued, in the foreword by the Executive Mayor (Patricia de Lille), is an objective of the reversal of apartheid through an approach to affordable housing. The City seeks to eradicate the divisiveness created by spatial apartheid. There can be no question that the City adopted the Organisational Development and Transformation Plan and established the TDA to that end.”

The city manager’s affidavit referred to a status report on various projects (Styan’s “pipeline”) and reported that, as at 1 March 2018, the Pine Road and Dillon Lane sites, in Woodstock, were planned for release to Sohco (a social housing company) by 17 July 2018. It further reported that Sohco would submit building plans by “end of May 2018”.

If you drive past these two sites, across the road from each other, today, you will find them fenced off with zero sign of any development.

What this proves is that the best-intended plans in Cape Town don’t necessarily come to fruition. The two Woodstock sites referred to above are not outliers; the same applies to all the other sites identified by the city manager eight years ago.

The City’s timeline is riddled with contradictions. In August 2019, it announced the cancellation of the Inner-City Affordable Housing Projects — the very same developments it had recently assured the court would be advertised in early 2018 to comply with a legal opinion on land disposal.

That’s why the Constitutional Court ordered the City to report to it on progress within three months. “It would appear that many of the parcels of land that the respondents say were released have since been recalled or are no longer in the pipeline, and those that are in the pipeline have been stuck there for over a decade,” it stated.

While it is true the City has reinstated some projects cancelled in 2019, none of them has yet recorded any actual building activity. I’m not sure of the extent to which these cancellations, reinstatements and re-announcements fit the description “undeniable progress”.

The City of Cape Town’s administration includes world-class professional staff, who understand their constitutional duties and how the post-apartheid city should develop. But they serve political masters. DM