Victory for housing activists in landmark Tafelberg case

Judges Patrick Gamble and Monde Samela have ruled in favour of housing activists in the landmark Tafelberg, Cape Town, case.

In a judgment of more than 200 pages, Gamble and Samela set aside the sale of the site of the former Tafelberg Remedial School in Sea Point by the Western Cape provincial government to the Phyllis Jowell Jewish Day School in November 2015 for R135m, and the subsequent decision by the province in March 2017 not to withdraw the sale.

The applicants in the case, led by the land and housing legal support organisation Ndifuna Ukwazi, challenged the sale of the Tafelberg site and the City of Cape Town and Western Cape government’s affordable housing policy.

On Monday morning, Gamble swiftly delivered the concurring judgment alone in court 1 in the Cape High Court.

Read the judgment and its annexure.

The judges also ruled that the provincial regulations the provincial government used to justify the sale of the Tafelberg site were unconstitutional and invalid.

The provincial government was found to have incorrectly applied the provisions of the Government Immovable Asset Management Act of 2007 by not offering the Tafelberg site to the provincial  housing department first.

The province was also found to have erred in its decision not to designate the Tafelberg site as falling within a restructuring zone, according to the Social Housing Act of 2008.

The court issued a declaratory order stating that the city and the province were in breach of their constitutional obligations to advance access to affordable housing, that there were not suitable policies in place to facilitate and promote access to affordable housing, and that after these constitutional breaches, the city and province “had not taken adequate steps to address the legacy of apartheid spatial planning in central Cape Town and its surrounds”.

Both the city and provincial governments were ordered to create a combined policy to address their constitutional breaches by May 31 2021.

A second application by the minister of human settlements was added to the first application from Ndifuna Ukwazi. In this matter the court found the provincial government was obliged to consult the national minister about the decision to sell the Tafelberg site, and that former Western Cape premier Helen Zille had been in breach of her duties to promote co-operative governance by refusing to consult with the minister about the sale.

At the heart of this case are two different visions of how this high-value piece of public land in Cape Town should be used. Housing activists want a significant part of Tafelberg to be used for affordable housing for poor people who travel to Sea Point daily, like domestic workers and gardeners. The city and provincial governments wanted to sell the land to a developer to build a private school.

Outside the court, access to which was limited due to Covid-19 regulations, activists for the land and housing movement Reclaim the City had gathered to witness the ruling, despite the icy rain.

Songs and celebration erupted at the announcement of the result.

Ndifuna Ukwazi organiser Buhle Neo declared: “It’s a rain of blessings.”

Core of the case is about dignity

Ndifuna Ukwazi director Mandisa Shandu, addressing Reclaim the City activists, said: “It’s been long. This case was started in 2016, but the struggle we fought for started 400 years ago. The core of it [the Tafelberg case] is about dignity, it’s about belonging, and it’s saying to the status quo, no more.”

Shandu has been involved with the case as an attorney for Ndifuna Ukwazi since the beginning.

Reflecting on what the case meant, she said, “This was our flagship campaign when we started to argue for spatial justice in Cape Town. The Tafelberg property was a significant parcel of land because it had previously been earmarked for housing. That set up the case that we needed to shift, initially symbolically but now realistically, the ideology of how land is used in Cape Town.

“The issue was so big and so serious, and affected so many people, that it galvanised the birth of the movement Reclaim the City. This is the issue that launched Reclaim the City.

“Getting people to articulate demands about a better vision, a different city  and land being a mechanism to undo the legacy of spatial apartheid planning — that is what this case has brought us. We took a risk, with radical legal arguments, and we won.”

Councillor Malusi Booi, the City of Cape Town’s Mayoral Committee Member for Human Settlements told GroundUp that the City is considering the judgment.

Request for comment has been sent to the provincial government. This article will be updated when this is received.

• This article was first published by GroundUp