Constitutional Court to hear appeal in fight over Tafelberg site
The Constitutional Court is expected to hear Ndifuna Ukwazi (NU) and Reclaim the City’s (RTC) appeal against the Supreme Court of Appeal’s (SCA) judgment and order in the Tafelberg matter on Tuesday.
The matter heads to the ConCourt after the SCA upheld an appeal by the Western Cape government. Activists want Tafelberg Properties, which are situated in Sea Point in central Cape Town transformed into social housing units.
The heart of the RTC application brought by NU lies in what the applicants see as a failure of the provincial government and the City of Cape Town to redress spatial apartheid planning in central Cape Town.
The NU's application was prompted in the sale by the province of the Tafelberg Properties to the Phyllis Jowell Jewish Day School for R135 million.
Since 2016, housing activists had been trying to get the sale set aside.
On 30 August 2020, the Western Cape High Court handed down its landmark judgment in which it set aside the province’s sale of the Tafelberg site, and declared that the WCG and City failed to redress spatial apartheid in the city.
It ordered the WCG and City to provide a plan for how it will fulfil their obligations.
By September 2020, the province decided to appeal aspects of the ruling — including the declaratory judgment, of which at the time, Premier Alan Winde and then MEC for Human Settlements Bonginkosi Madikizela said: “the court has made a range of orders that will fundamentally impact our ability to competently manage this province and govern it as an independent sphere of government as envisaged by the Constitution”.
The housing groups seek to argue that the SCA was wrong in overturning the High Court’s judgment and orders.
“This marks a critical moment in the almost decade long legal battle which will now see the highest court of the land considering the significant issues of constitutional and public importance that are raised in the Tafelberg matter. These include whether the WCG and City have acted reasonably in fulfilling their obligations to redress spatial apartheid and to realise the rights of equitable access to land and adequate housing,” the housing group previously said.
“It also includes clarification of what the law requires of the government in how it uses, manages and disposes of public land and how people are to be included and enabled to participate in the decision-making regarding public land.”
How the property will be used has remained a contentious issue.
Provincial MEC for Infrastructure Tertuis Simmers and MEC for Social Development Jaco Londt announced last month the province’s proposal for the redevelopment of a portion of the Tafelberg site, which they say followed an internal departmental utilisation review process, as provided for by the Government Immovable Asset Management Act, 2007 (GIAMA).
“In line with the Government Immovable Asset Management Act, the provincial Department of Social Development (DSD) has formally requested that the Tafelberg site, specifically the portion formerly used as a school, not be considered for disposal until such time as its possible use for the delivery of a range of social services that are required in that area can be fully assessed. This now makes the property no longer surplus to government requirements,” Simmer had said.
In response, the NU said that they noted the announcement “considering its full implications”.
“We do note that the manner in which the province has made this announcement and purported decision continues to raise concerns about how it involves the public in decisions about the use of public land.
“Particularly in the context of this site, where there had been and remains calls for it to be used for well-located affordable housing to address the unabating housing and segregation crisis in this city.”
The housing group then held a demonstration on Saturday as part of preparations for the Tafelberg case.
“We call for the Tafelberg site to be released for housing and demand a firm commitment from the government to ensure that the land is used to address the pressing need for affordable housing in Cape Town,” the group said.
The WCG condemned what they called an attempted invasion and security breach by the RTC.
Simmers said, “We have asked on numerous occasions that Reclaim the City work with us and not against us. Their actions today are abhorrent, and a deliberate attempt to sabotage the redevelopment of this site.
“The fact that it was the very same Reclaim the City who was calling for more affordable housing in the metro in the first place, leaves a bitter taste in the mouth, and one cannot help to wonder whether they really have the best interest of our communities at heart, or whether this is politically motivated.”
Simmers added that the actions of Reclaim the City and their political partners were in complete bad faith given the province’s plans for the site.
“Once again, I ask Reclaim the City: work with us, not against us. The Western Cape Government is fully committed to delivering affordable housing in well-located areas in the metro, and our plans for the Tafelberg site is proof thereof.”
theolin.tembo@inl.co.za