NU Law Centre

T A Adonisi & Others v Minister of Transport and Public Works: Western Cape and Other

The matter is colloquially referred to as the Tafelberg Case because it centres around the disposal of the “tafelberg site” – a piece of well located provincially-owned land in Sea Point, which previously housed (in part) the Tafelberg Remedial School.

The matter, primarily a review application, sought: a review of the Western Cape Government’s decisions in disposing of the tafelberg site, which is needed for and could be used to develop social housing; and a declaratory order that the Western Cape Government and the City of Cape Town have failed to comply with their obligations to redress spatial apartheid in Central Cape Town.

The matter considers the rationality and reasonableness of the WCG’s decisions in the context of the disposal of the tafelberg site but is particularly important and precedent setting because it also specifically engages issues of interpretation, clarification of and compliance with the legislative framework pertaining to the use and disposal of public land, including The Government Immovable Asset Management Act; The Western Cape Law Administration Act and Regulations; and The Spatial Planning and Land Use Management Act. It also addresses the issue of whether Sea Point falls into the “CBD and surrounds restructuring zone” (A Restructuring Zone is an area which in terms of the Social Housing Act would enable access to specific subsidies for the development of social housing) and the need for proper public participation in decisions regarding disposal of public land.

The review application was launched in 2017. The National Minister of Human Settlements together with the Social Housing Regulatory Authority also launched an application to review the Western Cape Government’s decisions to dispose of the tafelberg site. (Minister of Human Settlements & Others v Premier of the Western Cape Province & Others – Case Number 12327/2017). The matters were consolidated for hearing and were heard in late November 2019 in the Western Cape Division of the High Court, before Justices Gamble and Samela.

Judgment was granted on 31 August 2020 in the Applicant’s favour with the Court:

• declaring that the Western Cape Government and the City of Cape Town failed to comply with their constitutional and statutory obligations by failing to take adequate steps to redress spatial apartheid in Central Cape Town and ordered that they file a comprehensive report stating what steps they have taken and what future steps will be taken to comply with their obligations;
• reviewing and setting aside the Western Cape Government’s decisions to dispose of the tafelberg site and declaring the disposal of the tafelberg site in terms of contitutionally impugned regulations of the Western Cape Law Administration Act unlawful;
• declaring that Sea Point does falls within the restructuring zone “CBD and surround”
• declaring that Regulation 4(6) and the proviso in Regulation 4(1), of the Regulations made under section 10 of the Western Cape Land Administration Act, 6 of 1998 unconstitutional and invalid.
• ordering the Western Cape Government and City of Cape Town to pay Applicants costs including the costs of two counsel.

The Western Cape Government and the City of Cape Town subsequently sought leave to appeal parts of the judgment and order from the Western Cape Division. Importantly though, the orders reviewing and setting aside the decisions to dispose of the tafelberg site and the declaration of the disposal as unlawful are not being appealed.

On 20 February 2023, The Supreme Court of Appeal heard the appeal and we are currently awaiting judgment from the Supreme Court of Appeal.

This matter fits within our broader work on Expanding Equitable Access to Land and Housing.

Charnell Commando & Others v The Woodstock Hub & the City of Cape Town

This matter is commonly known as the Bromwell Street Case because the Applicants in this matter are families that have lived for generations in row cottages in Bromwell Street, Salt River, Cape Town.

The families are facing eviction into homelessness, after their rented homes were bought by a developer who seeks to redevelop the properties. Eviction orders were granted purportedly by agreement against the families but without considering that the families would be rendered homeless and without the City of Cape Town having indicated what emergency housing it could provide to the families. After having been made aware that the families would be rendered homeless on eviction, the City of Cape Town denied it had an obligation to provide the families with emergency housing which precipitated the launching of the matter which is primarily an application to compel the City of Cape Town to provide the families with emergency housing in a location as close as possible to their homes in accordance with its constitutional and statutory obligations.

After the City of Cape Town announced certain changes in its approach to delivering housing and responding to the emergency housing needs of people being evicted in the Woodstock, Salt River and Inner-City areas, the relief sought in the matter was amended to also seek a declaratory order that the City of Cape Town’s housing programme and implementation thereof in respect of evictees in the Woodstock, Salt River and Inner City areas, is unconstitutional.

The matter considers the reasonableness and rationality of the City of Cape Town’s emergency housing programme and its implementation, as well as the impact of spatial justice obligations in the context of emergency housing provision. It pertinently raises questions around how the City does and/or should fulfil its obligation to provide emergency housing in a location as close as possible.

The matter was launched in late 2016 and has followed a complex litigation history which has included a recusal application of the initial judge who had presided over the matter, a number of supplementary affidavits filed by all the parties, an application to amend the relief sought and a rehearing of the matter. The matter was eventually heard in the Western Cape Division of the High Court by Justice Sher partly in 2017 and partly in late 2020.

Judgment was granted on 6 September 2021 in the Applicants’ favour with the Court declaring the City of Cape Town’s emergency housing programme and implementation of it, unconstitutional and ordering the City to provide temporary emergency housing and/or transitional housing to the Applicants in a location as close as possible being within the Woodstock, Salt River and Inner-city precinct.

The City of Cape Town subsequently sought leave to appeal to the Supreme Court of Appeal. The appeal was heard on 14 November 2022.

On 6 February 2023, the Supreme Court of Appeal handed down judgment, in which it set the declaration on unconstitutionality made by the Western Cape Division but ordered the City of Cape Town to provide the Applicants with emergency accommodation in a location as near as possible to where they currently reside.

The Applicants have sought leave to appeal to the Constitutional Court and are currently awaiting directions from the Constitutional Court.

This matter fits within our broader work on Resisting Evictions and Displacement

Carin Gelderbloem &10 Others v City of Cape Town (with Womens Legal Centre, Triangle Project & African Policing Civilian Oversight Forum as intervening amicus curiae)

This matter is commonly referred to as the Gelderbloem matter after the first applicant.

It concerns two applications brought in the Western Cape Division of the High Court and Equality Court to challenge various provisions of the City of Cape Town By-Law Relating to Streets, Public Places and the Prevention of Noise Nuisances (Provincial Gazette 6469 of 2007) (“the Streets By-Law”) and the City of Cape Town Integrated Waste Management By-Law 2009 (Provincial Gazette 6651 of 2009) (“the Waste By-Law”) (together referred to as “the By-Laws”) that violate several constitutional rights of the homeless and, in addition to this, criminalise identified conduct which the homeless are not able to avoid.

The challenge arose in the context of all the Applicants having been fined either in terms of the Streets By-Law or the Waste By-Law and raises the issue of whether the by-laws are being correctly applied to the context and lived reality of people experiencing homelessness. It seeks to address the unconstitutionality of the by-laws and their application which affect the homeless in an adverse manner infringing their right to equality before the law.

The applications were launched in March 2021 and in response to the filing of the applications, the City of Cape Town amended the Streets By-law. The amendments retained the criminalisation of homelessness, but made certain sanctions subject to a condition that the person has refused an offer of alternative shelter. As a result of these changes there have been subsequent amendments to the application addressing the remaining constitutional deficiencies in the amended by-law. The support of 4 non-profit shelters, namely MES, Streetscape, New Hope SA and TB HIV Care, in describing the conditions of shelters, the nature of the relationship between homelessness and drug use, and the ineffectiveness of using criminal sanction as a means to get homeless persons into a shelter has assisted in raising the issue of reasonableness and rationality of the City’s approach as effected through its by-laws.

Three parties that have also intervened as amicus curiae in support of the applications, namely the Women’s Legal Centre, the Triangle Project and the African Policing Civilian Oversight Forum (APCOF).

The matter has been postponed sine die pending the City of Cape Town’s commitment to amending the by-laws.