Understanding the groundbreaking Tafelberg judgment

The Western Cape High Court has overturned the sale of the Tafelberg site in Sea Point. This article highlights some of the judges’ key findings. Archive photo: Masixole Feni

On 31 August 2020, Judge Patrick Gamble handed down the judgment of the Cape High Court on the sale of the Tafelberg site in Sea Point. The 218-page judgment, co-signed by Judge Monde Samela, is an endorsement of years of work by activists calling for land and housing redress in Cape Town.

The judgment set aside the decision to sell the land, struck out regulations which undermined public participation, and sought to ensure that provincial and local government properly implement their duties to provide social housing and address spatial apartheid in the Western Cape. This article highlights some of the key findings.

The Tafelberg site is owned by the Western Cape Provincial government. It consists of an old school building and a block of flats called Wynyard Mansions. The site previously housed public schools, the last of which relocated in 2010. In 2014, the last resident of Wynyard Mansions was evicted, and the site has stood unused since then. In November 2015, the Province contracted to sell the property to the Phyllis Jowell Day School, a private Jewish school operating in nearby Camps Bay. Activists in Reclaim the City, supported by the lawyers at Ndifuna Ukwazi, rallied against the sale. Along with several of its leaders, including the first applicant, Thozama Adonisi, Reclaim the City instituted litigation to have the sale reviewed and set aside. The applicants claimed that the sale was procedurally and legally flawed, and failed to take account of the potential social use of the land.

Initially, an interdict was agreed, halting the sale while the Province considered extensive public comments. Then, in March 2017, the Province decided not to back down from the sale. At that stage, the national Department of Human Settlements also instituted litigation, claiming that it should have been consulted in the decision to sell the site. The cases of Reclaim the City and the national Minister were consolidated and decided together.

At the core of Reclaim the City’s constitutional attack on the sale, Judge Gamble points out, “is the legacy of segregated living areas imposed on the people of our country by a plethora of legislation passed under the apartheid government”. As a result, many people spend high percentages of their income to travel to work or amenities. As Professor Susan Parnell told the Court, this “dislocation results in an unjust, inefficient and ultimately unsustainable segregated urban environment … Over the past two decades, government has failed to remedy this, by not meaningfully integrating Black and Coloured working class people into the central city.”

The court calls the apartheid policy of influx control one of the most pernicious aspects of the implementation of apartheid’s segregationist policies. Alongside this, the Group Areas Act of 1950 saw large-scale forced removals of Coloured and Indian people from many suburbs, including Sea Point. Post-apartheid gentrification has meant that people least able to afford transport are forced further and further onto the peripheries.

Redress and the Social Housing Act

In the view of the court, the Social Housing Act was adopted with the goal of addressing precisely the spatial inequality which Professor Parnell highlighted. The Act focuses on social housing as a rental or co-operative housing option, with public funding in designated restructuring zones. National, provincial and local government are required to promote the integration contemplated in the Act, and social housing programmes must support the economic development of low to medium income communities by providing housing close to jobs, markets and transport.

Furthermore, Judge Gamble points out, land access in section 25 of the Constitution is “designed to alleviate inequality in terms of race, gender and other relevant criteria”. Section 26(1) provides a right to access adequate housing, and section 26(2) says the state must take reasonable legislative “and other measures”, within its available resources, to achieve the progressive realisation of that right. Drawing on the Constitutional Court decision in Grootboom, Judge Gamble points out that the state has to create conditions which enable access to housing for people at all economic levels of society. Judge Gamble also emphasises section 237 of the Constitution, which requires constitutional obligations to be performed diligently and without delay.

The Social Housing Act recognises the “dire need for affordable rental housing for low to medium income households which cannot access rental housing in the open market”. In addition, the more recent Spatial Planning and Land Use Management Act recognises the fact that many South Africans continue to “live and work in places defined and influenced by past spatial planning … based on racial inequality, segregation and unsustainable settlement patterns”. This Act says spatial planning and land use must be guided by a principle that “past spatial and other development imbalances must be redressed through improved access to and use of land”.

Having outlined a range of provincial and local policy regarding the use of public land, Judge Gamble concludes:

“[It is] necessary for both the Province and the City to redress the legacy of spatial apartheid as a matter of constitutional injunction. The constitutional and statutory obligations of these tiers of government to provide access to land and housing on a progressive basis, encompass the need to urgently address apartheid’s shameful and divisive legacy of spatial injustice and manifest inequality.”

Background to the Tafelberg sale

As early as mid-2011, the provincial Department of Human Settlements investigated the feasibility of social housing on the Tafelberg site. However, the provincial Department of Transport and Public Works, the custodian of the site, began a process of scoping potential development ideas on the property. It asked several other provincial departments whether Tafelberg was required for any of their infrastructure purposes to further government objectives. In response, the provincial Department of Human Settlements wrote a letter in March 2013, which became a key piece of evidence in the case. The letter states clearly that the property was needed to develop integrated and sustainable human settlements, and to have the supply of affordable rental housing in close proximity to economic opportunities, transportation nodes and social infrastructure. It notes that the demand for such housing is significant, as is the need to preserve opportunities for racial and economic integration. It concludes:

“Cape Town is one of the most-segregated cities in the world. With this in mind, land cost is so significant in the Province that we could not afford to purchase market-related land which offered even slightly similar opportunities to [Tafelberg]. Were these portions of land to be disposed of, the opportunity cost for integration within the borders of the City could potentially be lost to us forever.”

In March 2014 the provincial Department of Transport and Public Works issued an expression of interest. Judge Gamble noted a few key features in this document. First, the Tafelberg site was advertised for mixed use development, including a residential component. Second, the property was considered by the Province to fall within the central city area for purposes of the Regeneration Programme. Third, the prospect of affordable housing was not mentioned for any of the four sites. Fourth, the document emphasised that the Province and the provincial Department of Transport and Public Works, had:

“made a policy decision that the [Province] will retain ownership of the properties in order to capture the broader benefit of property regeneration. An outright sale of the properties is therefore not under consideration.”

On 17 April 2014, Ndifuna Ukwazi, Equal Education and the Social Justice Coalition made a joint submission in the public interest to then MEC Robin Carlisle, objecting to the idea of a long-term lease to private developers, on the basis that the Tafelberg site should be developed for mixed income housing, particularly in the context of the shortage of suitable, well-located state-owned land available for public housing in the inner city.

On 11 June 2014, the new MEC, Donald Grant, replied to the letter. He indicated that modelling for affordable low cost housing is “simply impossible to apply” in the inner city. Though Communicare, an accredited social housing institution, had expressed interest in the Tafelberg site, the Province seems to have abandoned the expression of interest, deciding rather to maximise short-term revenue. A tender was put out with revenue maximisation as the key factor.

In the court’s view then, the Province never showed who made the decision to sell Tafelberg, when it was made, or what the terms of the intended disposal were. The absence of detail was particularly significant because, at the time the decision to sell was made, the objection of the Department of Human Settlements still stood.

Setting aside the sale

The court agreed with Reclaim the City that some regulations made under the Western Cape Land Administration Act, under which initial public consultations on the Tafelberg sale took place, were unlawful. The comment process took place after the sale and its terms were agreed, though the Act and the Constitution both intend public participation processes to happen earlier. Judge Gamble writes:

“In my view the prescribed procedure quite plainly puts the proverbial cart before the horse and places an unduly onerous burden on the objector to show the administrator that it was wrong.”

As a result, the Court deemed the relevant regulations invalid. This means that the sale was unlawful. It also means that in future, the Province will not be able to agree to a sale of public property before putting the question of what to do with the property to the public.

The finding on the regulations resolved the dispute about the sale of Tafelberg – because the sale was concluded on the basis of an unlawful participation process, it was invalid. But since a higher court might disagree, the Western Cape High Court also dealt with two other issues: that the Tafelberg site was not “surplus”; and that it did fall within a restructuring zone and therefore housing on the site would have been eligible for a government grant.

Tafelberg was not “surplus”

In terms of the Government Immovable Asset Management Act , a precondition to disposing of state-property is deeming it “surplus”. The Province had asserted that the site had become surplus by 2010, when the school was relocated. But the Court saw major problems with this:

• There was no evidence that in 2010 the Province complied with the steps required under the Act;
• People were still living in the Wynyard Mansions for several years after 2010; and
• The 2013 letter from the provincial Department of Human Settlements showed that the site was not “surplus”.

Even if the property had properly been declared as surplus, the court agreed with Reclaim the City that the province should only have been willing to sell the property in exceptional circumstances, and would have needed to show that the sale met compelling social needs. Instead, the province said the reason for the sale was to raise funds for a new office block for the provincial department of education, which the court felt was inappropriately described as a “social imperative”.

Tafelberg was eligible for a grant

The province also relied on the risk that Tafelberg was not part of a ‘restructuring zone’. In terms of the Social Housing Act, only property in a restructuring zone can receive a national grant to fund social housing. A 2011 notice from the national Department of Human Settlements set out five restructuring zones in Cape Town, including “CBD and surrounds (Salt River, Woodstock and Observatory)”. The Province took this to exclude Sea Point, where the Tafelberg property is located.

But Judge Gamble says that this must be understood in the context of the Social Housing Act, which promotes the integration of social housing into inner city areas. Furthermore, the City of Cape Town offered an affidavit showing that it always considered Sea Point as part of the restructuring zone. Critically, after the zones were gazetted, the Social Housing Regulatory Agency advanced funds for a study into the suitability of social housing at Tafelberg – which the agency would not have done if Tafelberg was thought to fall outside a restructuring zone.

Finally, the Court could not understand why the Province did not seek clarity about the restructuring zone. After a dispute arose about whether Sea Point fell into a restructuring zone, both the City and the national government expressed willingness to clarify that it did.

Back to the Constitution

In addition to the Tafelberg sale, Reclaim the City advanced a broader argument about constitutional rights. The organisation argued that:

• The Province and the City had failed to provide for the progressive realisation of the right to housing for low to middle-income households;
• Existing practices would need reconsideration, revision and sometimes replacement; and
• Judicial supervision would be necessary.

Judge Gamble writes:

“The official line from the Province bears the hallmark of the entrenchment of apartheid spatial planning and a seemingly blunt refusal to engage with the problem. This is highlighted by the pursuit of an enormous sum of money at all costs, ostensibly to address ‘social imperatives’, but in truth to erect a new building in the Provincial Precinct of the CBD in partnership with a private investor.”

The Province had no policy for implementing the Social Housing Act, the court found. Its lawyers offered a lack of funding from National Treasury as a reason. But, Justice Gamble pointed out, this was no excuse not to “at least have a blueprint to begin with”. In the absence of an adequate policy, Judge Gamble felt the Province had failed to properly explain its own overall position on social housing (which seems to have shifted since 2015). He writes:

“Does [the Province] recognise that it was in the wrong before, and has it made a genuine attempt to redress the injustices of the past, or has it capitulated to social activism and political pressure and attempted to obfuscate in broad and unspecific terms what should be seen as a clear change of policy?”

In view of the failure to develop a clear policy, the consensus that the Western Cape remains divided along apartheid lines, and the uncertainty about the Province’s intentions, the court agreed to supervise the formulation of an adequate report and plan on the development of social housing in and around the city centre.

The court order

The court declares that the Province and City have failed in their constitutional duties to provide access to adequate housing and to land on an equitable basis. In doing so, they have “failed to take adequate steps to redress spatial apartheid in central Cape Town”. The Province and City are now required to file a report with the court, by 31 May 2021, describing the steps taken to date and their future plans. In formulating this report, they must consult with all necessary organs of state and comply with the Social Housing Act. Reclaim the City and other applicants will be permitted to file affidavits in response to the government’s report and plan.

As to Tafelberg, the court sets aside the November 2015 decision to sell the property. The Province will need to reconsider Tafelberg’s fate, in the knowledge that Tafelberg is in a restructuring zone and qualifies for national social housing subsidies. Any future public comment on sales of public land in the Western Cape must take place before the terms of a sale are finalised. The court also declares the Province in breach of its cooperative governance duties in not consulting with national government on the sale, another breach which, by itself, the court says, invalidates the decision to sell Tafelberg.

Daniel Linde is an attorney and a former Deputy Director at the Equal Education Law Centre. He is completing an LLM at the London School of Economics and Political Science.

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