Tafelberg at Constitutional Court

Reflections on the Final Hearing, by Disha Govender, attorney for the Tafelberg Matter and Head of the Ndifuna Ukwazi Law Centre

On Tuesday 11 February 2025, the Constitutional Court heard Ndifuna Ukwazi and Reclaim the City’s appeal in the Tafelberg Court Case. This case is primarily about the obligations of the Western Cape Government (“Province”) and City of Cape Town (“City”) to redress spatial apartheid and to progressively realise the rights of the many poor and working-class Black (African, Coloured and Indians) people who remain structurally excluded from central Cape Town 30 years into democracy. It carries profound significance and potential to reshape the City into a more spatially just one.

The Court heard the parties’ arguments and just before lunch time, importantly questioned the Province on whether its approach that it is too costly to build affordable housing in central Cape would mean that the very poor will always be housed on the peripheries, to which the Province conceded yes. The Court questioned whether this is reasonable.

We argued that public land in central Cape Town is increasingly scarce and that the Province’s actions of selling off public land in the context of a housing and segregation crisis cannot be reasonable.

The Socio Economic Rights Institute of South Africa (SERI-SA), acting as friends of court, raised important arguments about how the sale of public land that can be used for housing would amount to a backwards step in the realisation of the rights to access to land and adequate housing.

The National Department of Human Settlements, in their related appeal which was heard simultaneously, argued that the Province failed in its inter-governmental obligations by failing to consult with it. It argued that intergovernmental co-operation is needed especially when it comes to decisions on land which are critical for the State’s socio-economic obligations, including land reform.

The Province and the City admitted that neither have built any affordable housing in central Cape Town. However they argued that this is not an indication of a failure to redress spatial apartheid.

The City argued that they have been doing what they can. It argued that it depends on other levels of government to make land available to it in order to build affordable housing, though it did not explain why despite also having land of its own in central Cape Town, it has not since the dawn of democracy delivered a single social housing or affordable housing unit in central Cape Town.

These were just some of the arguments made at the hearing. The Constitutional Court reserved judgment in the matter.

While we wait for the judgment, the fight for affordable housing on the actual Tafelberg site continues. The Province’s decision to sell the Tafelberg site was set aside as unlawful by the High Court as part of the Tafelberg Court Case. This order of the High Court was not appealed because the purchaser pulled out of the sale after the High Court judgment.

The Province made a vague announcement about its plans for the Tafelberg site a week before the Constitutional Court Hearing, indicating that it would be exploring the possibility of affordable housing on a portion of the site. During the course of the hearing before the Constitutional Court, the Court indicated that it had become aware of the Province’s announcement and expressed concerns. It questioned the Province about its plans for the Tafelberg Site, to which the Province replied that it would wait for the judgment from the Constitutional Court.

On 12 February 2025, the Province released a public statement where it said that while it awaits the judgment it will proceed with its “pre-planning” work to determine the optimal use of this Tafelberg site. It indicated that it will be drafting three concept plans before engaging with interested and affected parties.

 

We remain concerned about Province’s actions regarding the development, development processes and level of engagement with the public, ourselves and other levels of government regarding the future of the Tafelberg site.

Thank you to those who joined the stream online,
Thank you to those who came in person.
Thank you to all who have been part of this incredibly long journey.

PLEASE KEEP SPEAKING OUT.

We have and continue to advocate that the site be used for truly affordable housing.

 

 

• Link to Court Papers
• Tafelberg case: A pivotal moment for affordable housing in Cape Town – by Tracy-Lynn Ruiter, Weekend Argus, 15 February 2025
• Constitutional court to decide the fate of Tafelberg site
• Mother City continues to inspire dialogue on housing justice ahead of Constitutional Court hearing of ‘Tafelberg Case’