The Western Cape government did not choose to use prime inner city land in Cape Town's Sea Point for social housing because there was a risk that it might not be in a "restructuring zone" and its costs would not be covered, the Western Cape High Court heard on Wednesday.
"But didn't they pick up the phone and ask the national government?" asked Judge Pat Gamble when told by the province's lawyer that this was one of the many reasons the land was not considered for social housing.
"There's no obligation on the government to do that," replied advocate Eduard Fagan SC, with a muted gasp in the public gallery.
Fagan had been submitting the many reasons why the Western Cape government decided to sell the land for R135m for the construction of the Phyllis Jowell Jewish Day School, and explaining the situation where it was legally allowed to act on its own without consulting the national government.
Social activist groups Reclaim the City and Ndifuna Ukwazi are challenging the Western Cape government's decision to sell the 1.700-hectare plot known as the Tafelberg site for the private school development in Sea Point. The sale has been agreed to but has not been finalised due to the challenge.
The activists feel the land is perfectly situated for the first social housing project in the inner city to redress the apartheid government pushing people out to the Cape Flats.
Surging rental and purchase prices have made it even more difficult for people to live there.
Social housing considers applicants who earn between R1 500 and R15 000 - generally working-class people who do not earn enough to get a bond. However, the Western Cape government has conceded that it has not built one single social housing project in the inner city in the almost 25 years that the first democratic government was ushered in.
The court previously heard a sample of schools around the inner city showed that more than 90% of pupils came from suburbs on the Cape Flats, spending their days on lengthy commutes.
On Wednesday, Judge Gamble commented the cleaners and restaurant employees, who work in Sea Point, could not afford to live there, and he and Judge Monde Samela, who is also presiding, wanted to know why the Western Cape government had not considered social housing at Tafelberg before selling it to the day school.
Fagan said the provincial government's decision was complex, and one of the factors was that the site was not declared a restructuring zone. This means it does not qualify for regeneration funds that go with building social housing in restructuring zones.
He added it was up to the national minister of human settlements to declare restructuring zones, and although some sites had been endorsed as such, they had not been officially declared restructuring zones by the minister, and so this made the situation risky for the provincial government.
Fagan said an estimate showed 270 social housing units could be built on the site, but it would cost a minimum of R104m.
The province could and was building far more houses outside the inner city at a lower cost per unit.
But, the Western Cape government would lose the R135m it hoped to get from the sale of the land.
It wants to use this money to buy the education department its own building to save R40m in leasing fees.
Fagan added it was not true that the notice seeking comment on the proposed sale was not issued in isiXhosa at first as submitted by the lawyer for the human settlements department.
He said the first notice was merely to state the intention to invite bids when the land went to tender.
Fagan said the human settlements department also had, since 2016, enough time to challenge the legality of the notice, but in spite of being served court papers when the province was challenged by activists over the language issue, it had done nothing.
He added the contention that the minister did not know about the planned sale could not be true either because the minister was cited in the papers regarding the language issue, and had enough time to do something about the sale.
That issue was settled by an agreement to run the advertisement again, Fagan said.
He added "at best" the activists had only succeeded in shifting the debate on social housing.
The case continues.