Concourt judgment on Tafelberg could change future of social housing

The Tafelberg school site in 2016. Archive photo: Masixole Feni

• In 2015, the Western Cape Government announced it would sell the Tafelberg School site in Sea Point for R135-million.
• Housing activists then launched a legal battle to stop the sale and compel the Province to consider affordable housing before selling off state-owned land to private parties.
• The sale has since been cancelled and the site earmarked for affordable housing, but the Constitutional Court is yet to rule on the matter.
• This could determine how provincial and local governments use state-owned inner-city land in the future.

The Constitutional Court will in coming months make a final decision in the decade-long Tafelberg saga. The court’s ruling could significantly impact how provincial and local governments approach affordable housing and the disposal of state-owned land.

In November 2015, the Western Cape Provincial Government announced it would sell a plot of land in Sea Point, formerly the site of the Tafelberg Remedial School, to the Phyllis Jowell Jewish Day School for R135-million.

This was despite the Province having previously earmarked the site for social housing. The Social Housing Regulatory Authority had in 2012 completed a feasibility study for the site to be used for social housing.

The sale sparked a long campaign by housing activist groups, including Ndifuna Ukwazi and Reclaim the City, for the Western Cape government to prioritise social housing on state-owned land. At that stage, no subsidised housing had been built near Cape Town’s city centre.

Ndifuna Ukwazi in May 2017 launched a case in the Western Cape High Court. In 2020, the High Court ruled in its favour, declaring the sale of the property unlawful. As a result of the ruling, the sale of the property was cancelled.

But the Province and the City appealed the ruling in the Supreme Court of Appeal, which in April 2024 overturned the High Court orders. The case then went to the Constitutional Court, which heard the matter on 12 February 2025. Judgment was reserved.

Weeks before the Constitutional Court hearing, the Western Cape government unexpectedly announced its intention to use a portion of the site for affordable housing. But few details have been provided regarding the timelines or the number of units to be built at the site.

Members of Reclaim the City picket in the lobby of the legislature in January 2025. Archive photo: Matthew Hirsch

Why did the matter go on appeal?

Beyond the Tafelberg site, the Constitutional Court ruling could have wide implications for how local and provincial governments use state-owned land.

The original High Court ruling did more than just overturn the sale. It also ordered the Province and the City to put in place affordable housing policies. The court found that they “had not taken adequate steps to address the legacy of apartheid spatial planning in central Cape Town and its surrounds”.

The High Court also made far-reaching rulings on a complicated dispute between the parties about the legislation that governs the disposal of state land and the government’s obligation to provide well-located housing on state-owned land.

The High Court agreed with Ndifuna Ukwazi that the Province had an obligation to prioritise social housing in the inner-city such as at the Tafelberg site. It also agreed with the Minister of Human Settlements, who had launched a second application, that the Province should have consulted with the national minister before proceeding with the sale.

But then the Supreme Court of Appeal agreed with the Province and the City, who argued that they had complied with their constitutional obligations to provide adequate housing and access to land, and that the courts do not have the jurisdiction or capacity to tell government how it should spend its money, as long as the money is being used to progressively realise constitutional rights.

If the Constitutional Court agrees with the High Court and reinstates its original orders, it will compel the government in future to prioritise inner-city state-owned land for social housing. It would also make the High Court the “arbiter” of housing policy. This, the Western Cape government and City argue, is impractical and overreaching.

Supporters of Reclaim the City and Ndifuna Ukwazi chant on the steps of the Western Cape High Court in November 2019. Archive photo: Madison Yauger

Future of the Tafelberg site

Property law expert at Stellenbosch University Tanveer Jeewa said the timing of the announcement by the Province raised questions.

“One would be remiss to point out that the announcement was made two weeks before the hearing at the Constitutional Court, which seemed very strategic. Additionally, the announcement itself was not very detailed, it only announced the Province’s intention to use part of the site for affordable housing.”

Asked whether the Province would change its plans for the Tafelberg site if the Constitutional Court rules in its favour, MEC for infrastructure Tertuis Simmers did not provide a definitive answer, saying only that the Province is committed to well-located affordable housing on state-owned land “where feasible”.

The current plan for the Tafelberg site is still vague. The Province has said a portion of the site will be used for “affordable housing” and the remainder will be used by the Department of Social Development for social services. Simmers said it was not possible at this stage to say how many affordable housing units would be developed at the site.

The Province will be developing three “concept plans” for the proposed development after which interested and affected parties registered in 2024 will be able to participate in a workshop and focus groups.

Thereafter, because of the site’s heritage status, the site will undergo a Heritage Impact Assessment, which along with subdivision plans will be published for comment.

Brett Herron, the GOOD Party’s Secretary General and previously MMC for Transport and Urban Development in the City of Cape Town, told GroundUp feasibility studies previously conducted for social housing at the site had relied on cross-subsidisation from leasing out the school building.

But the Province’s plan to hand the school building to the Department of Social Development raises questions about how social housing on the site would be funded. Social housing developments receive subsidies from the Social Housing Regulatory Authority, but some form of cross-subsidisation is often needed to cover the full costs of the development.

Answering questions from Herron in the Provincial Legislature, Simmers said that the feasibility studies will be updated “to align with the current spatial policies of the City and to guide the development strategy”.

Disha Govender, head of the law centre at Ndifuna Ukwazi, said, “We remain concerned about the Province’s level of transparency regarding its decision making and plans, its involvement of the public in these, and of course whether it is indeed committed to the development of the site for affordable housing.”

Joselyn Tango holds up a placard in March 2016 at a protest organised by Reclaim the City to interdict the sale of the Tafelberg site. Archive photo: Mary-Anne Gontsana

Affordable housing in the city centre

When Ndifuna Ukwazi launched its court action in 2017, no affordable housing had yet been built in the Cape Town inner city. In the years since, there have been some substantial improvements. The Western Cape Government finalised an inclusionary housing policy framework in 2022 and the City of Cape Town is currently finalising an affordable housing policy, although activists have repeatedly called for the process to be sped up.

In the Daily Maverick last week, Cape Town Mayor Geordin Hill-Lewis said hundreds of affordable housing units have been developed near the city centre and 12,000 affordable housing units are in the pipeline. “The City is – at an unprecedented pace – strategically releasing municipal land for mixed-use development,” he wrote.

“(We) will also contribute significantly financially, at the “Tafelberg” site in Sea Point, and Helen Bowden Nurses Home (Green Point), among others,” he stated.

But despite the release of land by the City and the Province, the development of affordable housing in the city has been plagued by delays.

This is what the Tafelberg site could have looked like according to a 2012 feasibility study by the Social Housing Regulatory Authority.

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