Tafelberg social housing case heads to Constitutional Court

The Constitutional Court confirmed that it will hear housing advocacy groups, Ndifuna Ukwazi and Reclaim the City’s application against the Supreme Court of Appeal’s (SCA) judgment and order in the Tafelberg matter.

In April 2024, the SCA ruled in favour of the Western Cape Government and the City of Cape Town that they have no obligation to build homes in the inner City, but Ndifuna Ukwazi & Reclaim The City say the SCA erred in its ruling.

COURTESY: Ndifuna Ukwazi

The activists argue that their case is about their province and municipalities failure to redress spatial apartheid within the CBD.

‘’This marks a critical moment in the almost decade long legal battle which will now see the highest court of the land considering the significant issues of constitutional and public importance that are raised in the Tafelberg matter. These include whether the Western Cape Government (WCG) and City of Cape Town (City) have acted reasonably in fulfilling their obligations to redress spatial apartheid and to realise the rights of equitable access to land and adequate housing.  It also includes clarification of what the law requires of the government in how it uses, manages and disposes of public land and how people are to be included and enabled to participate in the decision-making regarding public land,’’ said Disha Govender, Head of Ndifuna Ukwazi Law Centre.

The Western Cape High Court handed down its landmark judgment, on 30 August 2020, in which it set aside the WCG’s sale of the Tafelberg site in Sea Point and declared that the WCG and City have failed in their obligations to redress spatial apartheid in central Cape Town. It ordered the WCG and City to provide a plan for how it will fulfil their obligations, giving hope and vindicating the rights of the many poor and working-class people who remain structurally excluded from accessing well-located land and housing.

Govender says the two housing group will argue that the SCA was wrong in overturning the High Court’s judgment and orders.

She highlighted five points the groups intends to argue at the Constitutional Court that the SCA erred in its determination of the issues in a number of ways including that:

1.   It incorrectly reduced the case to a question of whether there is a right to claim that WCG and City have to provide social housing in a specific location as opposed to interrogating whether the WCG and City have acted reasonably in fulfilling their respective obligations to redress spatial apartheid;

2.   It incorrectly relied on the “pipeline” of social housing projects and ignored the fact that no social housing has actually been built in central Cape Town areas since the dawn of democracy to date with no explanation as to why.

3.   It also failed to consider that even the “commitments” to add to the “pipeline” projects intended to be in central Cape Town areas were introduced to the pipeline after initial litigation was launched;

4.   It incorrectly approached the interpretation and application of the relevant laws by not interpreting them through the prism of the Constitution when considering the context, purpose and wording of the laws; and

5.   It failed to recognise the centrality and significance of spatial injustice in central Cape Town in assessing the reasonableness of WCG and City’s conduct in redressing spatial apartheid and segregation.

Govender says the High Court’s order setting aside the sale of the Tafelberg site was never appealed or overturned.

‘’The ongoing court case is not an impediment to the site being developed into social housing. Yet to date there remains no firm commitment from the WCG to release the site for social housing.’’

“30 years after democracy, the legacy of apartheid still looms large and the division it created still manifests and is visible. The Tafelberg Court Case seeks to hold the Western Cape and City of Cape Town Governments accountable in addressing at a systemic level how public land and particularly well-located public land must be valued,  used and redistributed to deliver on the constitutional mandate to transform our society, and to ensure a truly inclusive and spatially just city for all. The time is now!’’ said Disha Govender – Head of Ndifuna Ukwazi Law Centre

“While litigation is a powerful tool to advance spatial justice, it is equally crucial to build the power of the people to hold the Premier of the Western Cape accountable. We must ensure that the Tafelberg site is used for affordable housing for the working class people of Sea Point and the surrounding areas. The fight for spatial justice is not just a legal battle, but a collective effort to transform our society and create a truly inclusive city,’’ said Buhle Booi, Head of Political Organising, Ndifuna Ukwazi.

The matter will be heard simultaneously with the National Minister of Human Settlements Mmamoloko Kubayi, related appeal. The date for the hearing is to be set in due course.

 

Done By: Mitchum George