Supreme Court of Appeal reserves judgment in Tafelberg matter

Reclaim the City activists outside the SCA. Picture: supplied

Reclaim the City activists outside the SCA. Picture: supplied

Published Feb 21, 2023


Cape Town - The Supreme Court of Appeal (SCA) has reserved judgment in the case where the Province was challenging the 2020 high court ruling regarding the Tafelberg property in Sea Point, which activists want for inner-city social housing.

In 2020 the Western Cape High Court set aside the sale of the property. Judges Patrick Gamble and Monde Samela ruled that the regulations used by the provincial government to justify the sale of the site were unconstitutional and invalid.

In that judgment, the court found that the province had erred in its decision not to designate the Tafelberg site as falling within a restructuring zone according to the Social Housing Act of 2008.

It then issued a declaratory order stating that the Province was in breach of its constitutional obligations to advance access to affordable housing in terms of the section 25(5) right to gain access to land on an equitable basis, and the section 26 right of access to housing to redress spatial apartheid by not having a plan to address spatial inequality.

The high court court granted the application for leave to appeal against this decision on the basis that this particular order was “wide-ranging”, “breaks new ground” and raises issues “of public importance”, which justified further consideration by the SCA.

The issues before the SCA included the clarification and compliance of province and the City with their constitutional obligations and key laws that relate to how the government disposes of land and how the public is able to participate in decisions regarding the disposal of land.

While parts of the high court judgment were being appealed, the order setting aside the sale of the Tafelberg site is not on appeal.

Reclaim the City activists give the power salute while in the SCA. Picture supplied

Housing activists say there is nothing stopping the Western Cape Government, which owns Tafelberg, from developing a mixed-use, mixed income site on the premises.

Reclaim the City activist Elizabeth Gqoboka said: “We, the workers of Sea Point, have been calling for housing in the area since 1996 and we have never been taken seriously. We wanted a place to call home.

“People are homeless and the Tafelberg site is the only hope. It should be released for housing.”

The matter goes back to 2016 when the provincial executive commissioned a feasibility study for social housing at Tafelberg, and found that 270 units of social housing could be built.

This after then premier Helen Zille announced the decision made by her executive to proceed with the sale to the Phyllis Jowell Jewish Day School for R135 million in 2015.

Ndifuna Ukwazi’s Law Centre head Disha Govender said the case would have far reaching consequences and would be of importance to all people who are interested in ensuring that public land is used for public good.”

The Province did not comment on the reserved judgment by last night.

During Premier Alan Winde’s State of the Province Address, he said activists were “stealing other people’s rights to home ownership by illegally occupying sites earmarked for social housing and mixed-use developments”.

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Cape Argus