Tafelberg ruling mulled

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As the country pauses to reflect on Freedom Day, we recognise that the need to urgently unlock land for the development of affordable housing is fundamental to achieving the vision of a more just, more equal society NDIFUNA UKWAZI

Attorney Mandisa Shandu

THE province said it was contemplating the way forward after the Western Cape High Court dismissed its bid to appeal against an historic August 2020 decision on the Tafelberg site, which activists want for inner city social housing.

The Phyllis Jowell Jewish Day School bought the site for R135million in 2015. In 2016, the provincial executive commissioned a feasibility study for social housing at Tafelberg, and found that 270 units of social housing could be built.

Nevertheless, then premier Helen Zille announced the decision made by her executive to proceed with the sale.

The court’s groundbreaking decision in August was hailed by activists as having “far-reaching implications for the use of well-located public land to urgently address apartheid’s shameful and divisive legacy of spatial injustice and manifest inequality”.

Last week, judges Patrick Gamble and Monde Samela dismissed the province’s application for leave to appeal against its decision, but granted it leave to appeal against certain aspects of the judgment.

First, the court granted an application for leave to appeal against its decision that the province and the City had breached their constitutional obligations in terms of the section 25(5) right to gain access to land on an equitable basis, and the section 26 right of access to housing to redress spatial apartheid by not having a plan to address spatial inequality.

Leave to appeal against this part of the order was granted on the basis that this particular order was “wideranging”, “breaks new ground” and “raises issues of public importance”, which justified further consideration by the Supreme Court of Appeal.

Second, the court granted the province leave to appeal against its decision that the Western Cape Land Administration Act – the regulations that the province relied on for the public participation process after the Tafelberg sale – were unconstitutional.

The court found that these regulations did not afford the public a meaningful opportunity to participate in the decision to dispose of state land because the regulations only provided for public participation after the province had already made a decision to sell Tafelberg.

The judges said they were concerned that “the province had adopted a reactionary response when it was challenged about the absence of a planned long-term programme that would begin to address the effects of spatial apartheid in central Cape Town and the absence of affordable housing”.

Ndifuna Ukwazi spokesperson Zacharia Mashele said: “The decision means that the sale of the Tafelberg site will not go through and that the site will revert back to the province, where, we hope, this public land will finally be used for the public good.”

Ndifuna Ukwazi attorney Mandisa Shandu said: “As the country pauses to reflect on Freedom Day, we recognise that the need to urgently unlock land for the development of affordable housing is fundamental to achieving the vision of a more just, more equal society in which all residents can claim a sense of belonging and freedom.”

Reacting to the judgment, Premier Alan Winde said: “The province notes the judgment by the court. We will consider with our legal team the remaining orders against which leave to appeal has not been granted before deciding on the way forward. It is important to note that the termination of the sale agreement and the return of the property to the province’s property portfolio was settled last year already, a fact of which all parties are aware.”

Winde said the province remained absolutely committed to achieving spatial redress and would do all it could to make sure the province became inclusive, knowing that there were no quick-fixes.

He said the province intended engaging widely and constructively with all interested parties, and hoped others would cease playing politics or engaging in the incitement of further illegal acts around the important matter of spatial redress.