Ndifuna Ukwazi (NU) is considering appealing to the Constitutional Court as their case for affordable housing in the CBD was dealt a blow following a Supreme Court of Appeal (SCA) ruling upholding an appeal by the province concerning the sale of the Tafelberg property in Sea Point.
For several years the activists have been fighting over the sale of the property, calling for the site to be used for affordable social housing.
The Tafelberg property is located at 355 Main Road, in Sea Point. It measures 1 7054 hectares (ha) in extent and is registered in the name of the province.
In January 2016 the property was sold for R135 million. However in 2020, the province was prevented from selling the Tafelberg site to a private developer, when the Western Cape High Court set the sale aside, declaring it unlawful.
The provincial government sought to appeal the matter.
Among others, Ndifuna Ukwazi maintained that the procedure provided for in the Western Cape Land Administration Act 6 of 1998 (WCLAA) regulations was irreconcilable with meaningful public participation that could influence the decision not to dispose of the property in the first place, further arguing that the procedure favoured commercial interests over constitutional considerations.
Acting SCA President Nambitha Dambuza said: “The inquiry into the constitutionality of the impugned regulations requires (an) interpretation of the regulations and a determination of whether they provide for meaningful public participation.
“The transaction remains a proposed disposal until the minister has complied with the requirements of s 3(2), (3), and (4) of the WCLAA –the notice and comment procedure.
“While the province solicits and considers written representations received, the transaction remains a proposal.
“It is only completed and becomes a disposal once the province, after consideration of the representations as provided in Regulation 1(b), makes a decision as to whether to resile from the proposed disposition or not.”
Judge Dambuza found that the process was fair and balanced.
“Interested parties are afforded an opportunity to comment on a comprehensive proposal, which includes not only the description of the property intended to be disposed of, but also the identity of the prospective purchaser, the value of the land, its current and intended use, the reasons why the offer has been accepted for further consideration, and the proposed purchase price, amongst other details.
“All this while the government is able to execute its responsibilities in relation to the land efficiently, transparently, and cost effectively.
Having considered the above issues the appeal must succeed,” the judgment read.
Head of NU Law Centre, Disha Govender, said they were disappointed.
“The case really has been about interrogating the lack of real commitment and action by the province and the City to redress spatial apartheid and a call for accountability of the state to act reasonably and in accordance with their obligations in how they use land.
“We are still digesting the judgment but are disappointed with the outcome and are considering appealing against it to the Constitutional Court.
“It must be emphasised that the SCA judgment does not change the fact that the sale of the Tafelberg site was set aside and is available to be used.
We reiterate our call for the province to develop the site for social housing.”
The Western Cape government welcomed the judgment.
“As previously stated by Premier Winde and the then provincial minister for human settlements, the ‘Western Cape Government is absolutely committed to achieving spatial redress.
All levels of government across South Africa can and must do more in this regard, and we acknowledge this.
Redressing the wrongs of our painful past is a priority of our administration’.
“As residents will be aware, the Western Cape Department of Infrastructure recently requested Interested and Affected Parties to register as such for the consultation process regarding this particular site.
“In the request, the following was noted, ‘The site has significant development potential, given the central and strategic location of the site and its proximity to public transport and social infrastructure.
It also has extensive heritage and cultural significance which needs to be considered, respected and incorporated into future development proposals.
The department has commenced with site enablement to ensure that the site can become a catalyst for spatial transformation within the urban inner core’.
“The Western Cape Government wants to engage widely and with all those interested, as we work towards building a fairer, more inclusive Western Cape.”
Cape Times