Western Cape High Court to rule on Tafelberg case in second quarter of the year

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The march on Tafelberg in Sea Point.
The march on Tafelberg in Sea Point.
Picture: Daneel Knoetze
  • Judges Patrick Gamble and Monde Samela presided over the Tafelberg case virtually and sat for several hours listening to arguments.
  • The Western Cape government took the court's decision on appeal last year on the basis that the judgment amounted to "judicial overreach".
  • Activists have been challenging the provincial government's decision to sell the Tafelberg site to the Phyllis Jowell Jewish Day School for R135 million seven years ago.
  • The land had previously been earmarked for affordable housing.

Judgment in the case of the controversial sale of a piece of prime property in Sea Point, Cape Town, was reserved until the second quarter of the year.

On Friday, the Western Cape High Court heard the Western Cape government and City of Cape Town's application for leave to appeal the Tafelberg property judgment, which was delivered last year.

Judges Patrick Gamble and Monde Samela presided over the matter virtually and sat for several hours listening to arguments.

Legal representative for the provincial government advocate Eduard Fagan told the court the judgment has many implications and should be ripe for an appeal.

"The judgment imposes constraints on the province's ability to raise revenue by selling off land and the Supreme Court of Appeal should look into it."

He said there is no duty to provide housing in a specific area, namely in the CBD of Cape Town.

READ | High Court sets aside R135m Sea Point school sale, frees land to address apartheid legacy

Legal representative for the City of Cape Town advocate Nazreen Bawa told the court the City does not have a legal obligation to address spatial apartheid by providing social housing in central Cape Town. "The court didn't take account [of] what the City is doing to address spatial inequality in other parts of the city. Ideally you would want social housing in central Cape Town, but there is no legal obligation to provide a specific type of housing in this area."

The Western Cape government took the court's decision on appeal last year on the basis that the judgment amounted to "judicial overreach".

A ruling last year found the City and the province had failed in their constitutional mandate to address apartheid spatial planning by selling the site to the Phyllis Jowell Jewish Day School for R135 million. The property has been returned to the provincial government.

The province said the findings of the court in this regard impact on the Western Cape government's core functions going forward. It said this includes the right of the province's executive to determine how and where its budget is allocated province-wide, its right to determine how to dispose of assets and its right to operate within a participative democracy.

The City said the court erred in conflating the obligations of the province and the City, and in doing so, found the City had failed to comply with its obligations under the Housing Act and Social Housing Act.

READ MORE | 'You can't blindside us this way': Sea Point social housing property dispute gets technical

"In finding such, the court ignored the City's social housing erected within walking distance to public transport and employment areas and which contributes to racial integration within certain suburbs, as well as its plans for social housing developments in the next 10 to 15 years," its court papers said.

Housing law group Ndifuna Ukwazi has been spearheading a campaign to compel both spheres of government to build affordable housing. They opposed the application for leave to appeal.

Legal representative for Ndifuna Ukwazi Peter Hathorn told the court: "When one takes this all into account, it's very clear that the province and the City of Cape Town did not take reasonable steps to combat spatial apartheid in central Cape Town. There is no denial that both the province and City are not working together on the development of housing."

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