The Western Cape government did not tell the national human settlements department that it had agreed to sell a valuable plot of land in Sea Point to private developers for a school, the Western Cape High Court heard in a challenge to the sale on Monday.
"It did not tell the human settlements department what it was planning to do with the land," said advocate Ismail Jamie SC for the national minister.
He claimed this was a breach of the Constitution, which states that all spheres of government have to work together.
This was also in breach of the Constitution of the Western Cape, which says that as part of the government of South Africa, the province must act in accordance with the principles of co-operative governance.
The Western Cape and KwaZulu-Natal governments have their own constitutions, the court heard in a brief sidetrack on to the topic, when it emerged that not everybody in court was aware of this.
Social activist groups Reclaim the City and Ndifuna Ukwazi are challenging the Western Cape government's decision to sell the prime land for the establishment of the Phyllis Jowell Jewish Day School for R135m.
They have argued that its decision to go ahead with the sale was against local, provincial and national constitutional obligations to redress apartheid spatial planning and provide social housing.
The case is not a land claim or about land restitution.
It is to challenge the Western Cape's sale of the Tafelberg religious centre on the grounds that the land is perfectly situated to begin correcting the apartheid legacy of pushing many black, coloured and Indian people out of the Cape Town CBD and its surrounds.
Due to regeneration programmes, only 20% of the country's top earners could afford to live in the CBD and surrounds, so almost 200 000 people have to commute to the CBD every day, the court heard.
The sale has been agreed to, but activists have secured an interdict to prevent it from being transferred pending the dispute that will be heard in court for the rest of the week. The City of Cape Town and province are expected to also address the court later this week.
The court heard the site would not only house a religious school, but also a synagogue, housing, restaurant and residence for the aged.
Advocate Coriaan de Villiers, representing the activists, submitted that the provincial government only sought public comment on the sale once it had been agreed to.
She said the invitation to comment happened after the Western Cape's cabinet decided to sell the land, and the agreement of sale had been signed.
Earlier, also for the activists, lawyer Pete Hathorn claimed there was not one social housing project in the Cape Town CBD since the first democratic government was elected.
He explained that social housing was not the same as the old Helen Bowden nursing home or Woodstock developments, which would set aside a portion of units for social housing.
It was also not the same as the restitution processes relating to open land such as District Six.
He said the case was about a constitutionally mandated obligation to provide social housing in terms of the Social Housing Act for people who earned between R1 500 to R15 000 a month as a means of redress for apartheid planning which saw many black and coloured people being pushed out of the Cape Town CBD.
"If Cape Town is going to be transformed, it's not going to be possible to do it by leaving the heart of the city untouched, and allowing the process of gentrification to continue unabated," said Hathorn.
The case continues on Tuesday.