Western Cape takes back Tafelberg school site and appeals landmark judgment

The Western Cape government has extended an olive branch to organisations that sued it over the sale of a historic Cape Town school site.

This followed a judgment of the high court in Cape Town which overturned the sale.

In an elaborate joint statement on Friday, premier Alan Winde and transport and public works MEC Bonginkosi Madikizela said after considering the 200-page judgment, the province will take back the Tafelberg school site after the successful bidder indicated that it would no longer pursue the sale.

The Phyllis Jowell Jewish Day School bought the site for R135m in 2015. The provincial government came under fire from organisations Reclaim the City and Ndifuna Ukwazi.

However, Winde and Madikizela said they had no alternative but to seek leave to appeal against the judgment in the Supreme Court of Appeal.

“The decision to sell the property in Sea Point known as Tafelberg to the successful bidder, the Phyllis Jowell Jewish Day School, was taken in the previous political term, by a cabinet different to the current one,” the statement reads.

 “Whilst that agreement of sale was the impetus for the litigation which has followed, it’s clear that the real aspects of contestation argued before the Western Cape High Court, and therefore the judgment’s consequences, span far beyond this particular site and this particular purchaser, which has been unable to take ownership of the site for over two years already as a result of the litigation.

“The Western Cape government can now confirm that, after reflecting on the recent judgment handed down by the Western Cape High Court, the Phyllis Jowell Jewish Day School have indicated to us that they do not intend to pursue their rights under this contract of sale any further — a decision which we believe will result in the mutual termination of the sale agreement and the return of the property to the Western Cape government’s property portfolio.” 

Winde and Madikizela said the province will now reconsider its use and reiterated the administration is committed to spatial planning redress.

“Redressing the wrongs of our painful past is a priority of our administration. We swore an oath to the constitution of the RSA, and we intend do all we can to make sure our province becomes inclusive, knowing that there are no quick fixes, and that this is a road we must walk together,” said the statement.   

“To this end our government now intends to engage widely and with all those interested, as we work towards building a fairer, more inclusive Western Cape. This includes with Reclaim the City and Ndifuna Ukwazi.

“Constructive engagement is in the best interests of all of us, including our most vulnerable residents, who are top of mind when it comes to the realisation of socio-economic rights.” 

But Winde and Madikizela said they would not tolerate incitement of illegal invasion of property.

“Our engagements must and will be premised on respect for the rule of law in our province and country. Incitement to illegally invade property for any reason, including land that is already earmarked for social housing, must come to an end,” the statement said.  

“We therefore call on Reclaim the City and Ndifuna Ukwazi to join us in condemning the illegal occupation of Helen Bowden Nursing Home and other properties which have been earmarked for affordable housing in central Cape Town and to make every effort not to further hamper our efforts to develop these sites for our most vulnerable residents.

“Developing these sites will contribute greatly to redressing spatial apartheid. It is time for all to show their genuine commitment to this goal.” 

The premier and the MEC said they welcomed the judgment and that it had far-reaching implications.

“The Western Cape government embraces the Western Cape High Court’s finding that we have a constitutional obligation towards the redress of the effects of spatial apartheid, in the context of both planning and resource allocation in the Western Cape. This has never been in dispute — not before, during or after the case,” they said.

However, aspects of the judgment would affect the Western Cape government's ability to deliver on its mandate to an extent that they amounted to judicial over-reach.

“An appeal is still required in respect of the extensive nature of the finding and order of the court, given their impact for all government departments and organs of state  which would, if unchallenged, be binding henceforth,” they said.

The judgment would affect the Western Cape government's ability to decide how and where money is allocated, how to dispose of assets and a range of other issues.

“Notwithstanding our filing of an appeal in this matter, the very fact of this litigation has given us cause to pause and reflect on the need to identify even more well located, affordable housing in the Western Cape,” said Winde and Madikizela.

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