The right of access to land, together with the concomitant state obligation to foster conditions which enable citizens to gain access to land on an equitable basis, lies at the heart of the housing activists case before the Constitutional Court over the fate of the Tafelberg site.

Judgment was reserved on Tuesday in the David and Goliath legal battle between the activist organisations and the Western Cape Government (WCG).

Activists want Tafelberg Properties, in Sea Point in central Cape Town, transformed into social housing units however the WCG argued that the site is not suitable for social housing and will be used for a school again.

Heard by a full bench, the Concourt battle comes after Ndifuna Ukwazi (NU) and Reclaim the City (RTC) appealed against the Supreme Court of Appeal’s (SCA) judgment and order which upheld an appeal by the WCG.

The activists want the court to set aside the province’s sale of Tafelberg Properties to the Phyllis Jowell Jewish Day School for R135 million.

According to activists, the provincial government and City failed to redress spatial apartheid by not making available the well located provincially-owned land for social housing which previously housed the Tafelberg Remedial School.

NU and RTC submitted that the “poor residents were increasingly being forced out of the centre of the city” and further argued that “no affordable housing had been developed in central Cape Town since 1994”.

Arguing for applicants NU and RTC, Coriaan De Villiers, submitted: “(The) province had for several years been intent on selling off state-owned land that is indispensable for redressing spatial injustice. There is no coherent, overarching strategy in place to deal with the situation. It is apparent from this context that the ss 25(5) right of access to land, together with the concomitant state obligation to foster conditions which enable citizens to gain access to land on an equitable basis, lie at the heart of the case.”

Counsel for the WCG, Eduard Fagan, submitted that the decision to dispose of the Tafelberg property to the school was taken after detailed consideration was given to, among many other factors, the possibility of utilising the property for social housing.

“Having considered all the relevant circumstances, including the financial feasibility of establishing affordable housing on a property which has inherent land-use limitations, the WCG decided not to use the Tafelberg property for that purpose.”

For the City, Nazreen Bawa, argued that dwindling budgetary and financial constraints influenced the City’s ability to buy property at market-related prices.

“There is no dispute that spatial apartheid requires redress. The City continues to seek to address it throughout the City within its available budgets and as required by the Spatial Planning and Land Use Management Act (Spluma).

“The CBD or inner City or even the Applicant’s artificially created central Cape Town, does not exist in a factual and/or economic vacuum. It is one economic hub. But what makes it a preferable economic hub for the provision of social and/or affordable housing to others that are and have been created (and are growing) and which are arguably closer to where people reside?” Bawa submitted.

The Socio-Economic Rights Institute of South Africa (Seri) was admitted as amicus curiae earlier this year.

In written submissions, Seri said their interest in the matter relates to the delivery by the state of affordable housing and specifically the disposal of public housing stock.

Arguing their stance for spatial justice relief, Seri said: “The appropriate focus of inquiry is the general policy of Province and the City. That general policy is not to provide affordable housing in central Cape Town, but to do so in other areas where it is less costly. It is also their position that it is legitimate and defensible to sell immovable property in central Cape Town (such as the Tafelberg property) in order to generate revenue to meet their obligations. In doing so, they fail to recognise that such disposal constitutes a retrogressive measure. The general policy position of Province and the City is inconsistent with the Constitution.”

Meanwhile, GOOD Party’s secretary-general Brett Herron, in a statement issued to the court, said they support the development of the Tafelberg site for social housing.

“There is not just a critical shortage of housing in Cape Town; since apartheid ended, the City and province have resisted developing housing for people of colour in well-located areas previously reserved for white citizens, maintaining the relationship between race and space engineered by the old Group Areas Act,” said Herron.

Cape Times