There is no requirement to seek public comment on a project before the government puts out a tender, the Western Cape High Court heard during the Sea Point social housing property dispute on Thursday.
This point was made regarding whether the Western Cape provincial government sought comment properly before it decided to sell a 1.7ha site in the sought-after Cape Town suburb to a Jewish day school, instead of earmarking it for social housing.
The Phyllis Jowell Jewish Day School (PJJDS) offered R135m to buy the derelict site with its empty school building and small staff accommodation building, from the Western Cape provincial government.
This after it decided to put the site up for tender and invite bids to buy it.
The school's bid was higher than market value, and the site was so sought-after that there was even another bid that was above market value, but not as high as the one the school had submitted.
The school wants to move from its current site in Camps Bay which has become unsuitable. It wants to restore the derelict school building on the heritage site for Jewish education.
The PJJDS also plans to restore the old Tafelberg school building and flatten the old Wynyard Mansions which has 12 units.
In its place, it will build 44 affordable housing units, which will be made available to staff members.
The staff do not have to be Jewish to live there.
The PJJDS plans to add a retirement home and relocate residents who are living in a building that is falling into disrepair, as well as a restaurant and day hospital.
The Western Cape government agreed to sell the site in 2015 and the sale went through in 2017.
It, in turn, plans to use the R135m it will get from the sale to erect a building for the education department, instead of leasing offices - saving R40m per year by doing this.
The court heard since the constitutionality of the sale process was being challenged, the plan for the building had fallen through.
The Western Cape government has lost the commercial partners who were going to be part of the "precinct" that its education building was going to be built around.
Housing activists Reclaim the City and Ndifuna Ukwazi are questioning why it did not consider social housing for the site to redress spatial apartheid planning in the first place, and believe that failing to do this may be a violation of the Constitution.
It is also questioning some of the processes followed in deciding to sell the property to the day school.
The court heard that not one social housing project had been built in Cape Town's CBD in 25 years, with the focus being outside the city centre.
This means people who work in the city are still commuting long distances at great expense, and schoolchildren seeking a better education are taking exhaustive and potentially dangerous trips every day to schools in Sea Point and the inner city.
Advocate Paul Farlam SC for the PJJDS said as far as the buyers were concerned, everything was in order for the sale.
"You can't blindside us in this way," he added, as he picked apart the claim that the province should have sought public comment before putting the site out for tender.
Farlam said the Western Cape government had the option to resile (abandon the agreement to sell) after this but decided not to exercise this option at a Cabinet meeting to make a final decision.
The court also heard submissions on whether the minister of human settlements was properly informed, and whether it was a legal obligation to inform her, in line with legal requirements for government departments to work together.
The case continues on Friday.