High Court hears whether Tafelberg site decision should be taken to SCA

The legal tussle over the Tafelberg site is set to continue after the Western Cape High Court heard an application for leave to appeal its groundbreaking judgement.

The judgment has far-reaching implications for the use of well-located public land to address apartheid spatial injustice and inequality.

The provincial government and the City of Cape Town submitted arguments in support of their application against the judgement delivered in August.

The court set aside the sale of the Tafelberg site for R135 million and found that it was unreasonable and unlawful.

In the August judgment, judges Patrick Gamble and Monde Samela found that the provincial government and the City had a constitutional and legislative duty to address spatial apartheid planning by providing affordable housing in central Cape Town.

It also declared the provincial Land and Administration Act (WCLAA) unconstitutional and that it did not give the public a meaningful opportunity to participate in the decision about state land.

The court ordered both the provincial government and the City to develop a plan on how to do this by May 31, 2021.

To date, there has been no social housing project in central Cape Town to address the apartheid spatial imbalances.

The buyers, the Phyllis Jowel Jewish Day School, decided not to go ahead with the sale and did not appeal the judgment. The court heard on Friday from senior counsel for the provincial government, advocate Eduard Fagan, that the provincial government had no obligation to provide social or affordable housing in a specific area.

Fagan argued that the court made a mistake when it set aside the sale of the site.

He said that all three spheres of government, including the national Department of Human Settlements, should have been asked by the court to report on how they would provide social housing in central Cape Town.

Fagan also argued that the City and the provincial government were separate entities and thus they should not have been asked to develop a social housing plan together.

Fagan also said his clients were concerned that the court had ruled that Sea Point fell into a restructuring zone in terms of the Social Housing Act, adding that addressing spatial apartheid in central Cape Town would mean that there would be less money to build houses elsewhere.

He added that the provincial government had plans to provide social housing that were in the pipeline.

"If one is addressing spatial apartheid by way of a pipeline, then that is compliance with the obligation. One does not need a policy," Fagan argued.

Senior counsel for the City advocate Nazreen Bawa argued that while her clients accepted that they had an obligation to develop housing in terms of the Social Housing Act, it did not have an obligation to provide access to a specific type of housing in a specific geographical area.

Bawa also argued that the City had nothing to do with the provincial government's failure to comply with its obligations.

Bawa said “state-owned" land was not under control of the City and as such the court judgment should not have found that the City failed to comply with its obligations.

She said the court order that the City, along with the provincial government should develop a joint plan on how to address spatial transformation through the development of social housing should have also included the national departments of human settlements and public works and infrastructure.

Bawa also argued that historical inequities were broader than Central Cape Town and that the City was trying to create more economic nodes elsewhere.

However, senior counsel for Ndifuna Ukwazi and Reclaim The City, advocate Pete Hathorn submitted that it was clear that the provincial government and the City did not take reasonable steps to address spatial apartheid in Central Cape Town.

He argued that for the disposal of the "high value" site such as Tafelberg, the province should have followed a public participation process.

Hathorn further submitted  that once public land was sold to the highest bidder that land would be forever lost to the private market and the ability to address spatial inequality prevented.

He added that the provincial government had no strategy in place on the disposal of assets.

Senior counsel for the minister of human settlements advocate Ismail Jammie argued that the provincial government should have consulted with his client with regard to the disposal of the site as required by the Constitution.

He argued that the Tafelberg site was one of the only sites on the Atlantic Seaboard that could be used for social housing, adding that the province's own human settlements department had shown interest in the site for a similar purpose.

Judge Gamble noted that there were disagreements within the provincial government about the site and these took the form of “racial lines”.

He said there were those who advocated for change and those opposed to it, saying that there could be “no RDP in the Central Business District”.

The judge added that those who advocated for change were “rebuffed by their political superiors”.

The court reserved judgment until the second quarter of the year.