By Johnathan Paoli
The Constitutional Court has ruled that the Western Cape government and the City of Cape Town failed to meet their constitutional obligations to address apartheid-era spatial inequality, declaring the 2015 sale of the Tafelberg site in Sea Point unlawful.
In a unanimous judgment delivered on Thursday, the apex court found that both spheres of government had acted unreasonably in their approach to well-located land in Cape Town, and had failed to meaningfully advance the constitutional right to adequate housing in areas of economic opportunity.
Reading the judgement Judge Nonkosi Mhlantla highlighted the important questions this case raised in light of the ongoing legacy of apartheid and the project of transformation in the country.
“The submissions in these matters have highlighted the crucial distinction between merely distributing resources and ensuring that those resources are distributed in a manner that actively dismantles historical inequalities shaped by race and class along geographical lines,” Mhlantla said.
The case arises from the Western Cape provincial government’s 2015 decision to sell the former Tafelberg School site in Sea Point to the Phyllis Jowell Jewish Day School for R135 million, instead of utilising the strategically located public land for affordable housing development.
Housing activists, including Reclaim the City and Ndifuna Ukwazi, challenged the sale, arguing it entrenched apartheid-era spatial patterns by excluding lower-income residents from well-located land near jobs, transport, and services.
After nearly a decade of litigation, the country’s highest court ultimately agreed, finding that the disposal of the site was unlawful due to failures in public participation, improper classification of the property as surplus, and insufficient regard for constitutional obligations.
The court also found that the public consultation process had been inadequate, describing it as a “ticking box” exercise that did not meaningfully engage affected communities.
Mhlantla held that “paper plans and incomplete undertakings do not amount to constitutional compliance”, and emphasised that actual implementation is required.
The court found that housing location is a core component of the right to adequate housing, and that the government is obliged to take reasonable measures to ensure access to affordable housing in well-located areas.
Mhlantla held that both the province and the city had failed to adopt a coherent strategy to reverse spatial apartheid patterns, finding that reliance on peripheral developments “perpetuates spatial inequality” and does not meet constitutional standards.
It ordered both governments to report back within three months on their affordable housing policies, budgets, and plans for the Cape Town CBD and Sea Point, and confirmed that location must be treated as a central factor in determining housing adequacy.
The City of Cape Town said it welcomes the opportunity to update the court on affordable housing progress and challenges, stressing that it would comply with the court’s directive to file detailed reports on its housing pipeline.
The city pointed to what it described as “undeniable” progress over the past eight years, including approximately 4 000 affordable units entering construction in Cape Town’s inner city this year and a broader pipeline of 12 000 affordable housing units in well-located areas including the CBD and other economic nodes.
It argued that progress had been constrained by “a severe lack of National Social Housing grant-funding”, welcoming the court’s acknowledgement that intergovernmental consultation was necessary in future land development processes.
Reacting to the judgment, GOOD Party Secretary-General Brett Herron welcomed the ruling, saying it dismantled a central pillar of the DA’s policy of maintaining spatial injustice in Cape Town.
He said that the ruling confirmed governments must move beyond planning documents and demonstrate actual delivery.
“Today’s judgement is momentous, affirming the obligations of city and provincial governments to oversee the progressive realisation of rights conferred by the Constitution,” Herron said.
ActionSA’s Cape Town mayoral candidate Dereleen James also welcomed the ruling, describing it as a “landmark judgment” exposing failures by the DA-led administrations.
“The judgment confirms what thousands of Capetonians already know: despite years of promises, the DA has failed to deliver well-located, affordable housing where it is needed most,” James said.
She said that the court had made it clear that “policy documents and paper plans are no substitute for meaningful action”, stressing that the location of housing is a constitutional imperative.
According to ActionSA, the ruling reinforces the need for a shift in urban planning priorities, including “conducting an immediate audit of all city-owned land”, releasing strategically located land for affordable housing, and accelerating redevelopment projects in areas such as District Six.
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