Tafelberg property saga: SCA reserves judgment in appeal against landmark housing ruling

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Tafelberg school, the site of a disputed land sale in Sea Point.
Tafelberg school, the site of a disputed land sale in Sea Point.
PHOTO: Adriaan Basson/News24
  • The Western Cape government and the City of Cape Town have challenged a 2020 Western Cape High Court judgment regarding the disposal of property in Sea Point, Cape Town.
  • The High Court set aside the sale of the Tafelberg school property and ordered the province and the City of Cape Town to "address the legacy of apartheid spatial planning in central Cape Town and its surrounds".
  • But the Western Cape government argued on appeal that it was not that simple.

The Supreme Court of Appeal (SCA) has reserved judgment in the controversial Tafelberg case, which stems from the Western Cape government's decision to sell prime property in Sea Point, instead of using it for housing.

The matter was argued before SCA Judges Nambitha Dumbuza, Dumisani Zondi, Ashton Schippers, Daisy Molefe and David Unterhalter.

The provincial government owned the Tafelberg school property and sold it to Phyllis Jowell Jewish Day School NPC in November 2015 for R135 million. But organisations Reclaim The City and Ndifuna Ukwazi, as well as several individuals, challenged this.

READ | High Court dismisses bid by Western Cape govt to appeal Tafelberg sale ruling

In a landmark judgment in 2020, the Western Cape High Court set aside the sale of the property and ordered the province and the City of Cape Town to "address the legacy of apartheid spatial planning in central Cape Town and its surrounds".

The City and provincial government appealed parts of the judgment to the SCA.

Much of the arguments in the SCA were focused on the constitutional obligations of the Western Cape government and City of Cape Town when it comes the disposal of public land and the public participation consultations related to that.

Head of Ndifuna Ukwazi's Law Centre Disha Govender said: 

At the heart of the matter is the government's obligations to promote equitable access to land and redress spatial apartheid and injustice through the provision of affordable housing in central Cape Town.

Govender added that almost three decades since democracy and until the launch of the Tafelberg matter, the Western Cape government and City of Cape Town had not built affordable housing.

Ndifuna Ukwazi's argument was that nothing was stopping the Western Cape government from developing a mixed-use, mixed-income site on the premises because several feasibility studies showed that it was possible.

The province, however, argued that the court did not take into consideration its budgetary constraints and the range and extent of the housing need.

Reclaim the City protesters with placards
The Reclaim the City group is one of the organisations demanding that the Tafelberg school grounds in Sea Point be developed for social housing.
PHOTO: Daneel Knoetze

"In order to declare that the [Western Cape government] has failed to comply with its obligations in terms of Section 26 of the Constitution, the court would have needed to find that the Western Cape government had acted unreasonably in its efforts to give effect to the housing right generally. This assessment would have needed to be made with due regard to the full range of the Western Cape government's delivery and other constitutional obligations, including those pertaining to health and education," it argued.

The City argued that it was not responsible for the sale of the Tafelberg land. 

"The City was neither responsible for its sale, nor complicit therein, and, in fact, at all material times, indicated that, if provided to the City, it would use the land for social housing," it submitted.

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