“A city’s architecture tells the story of its soul. In Cape Town, as in most, if not all, South African cities, that story remains one of division.”
These words are in a landmark Constitutional Court judgment declaring unlawful the Western Cape government’s 2015 decision to sell the Tafelberg school buildings and land in Cape Town. It ended a decade-long litigation battle between housing activist groups Ndifuna Ukwazi and Reclaim the City and the Western Cape government.
The court found that both the city and the province had failed to adequately implement affordable housing plans. Both were directed to submit detailed reports within three months to the Western Cape High Court on their plans to undo spatial apartheid. The court also ruled that the province had failed to meaningfully engage with the public before the decision to sell the Tafelberg property.
“The need for social housing is further underscored by the fact that our country is one of the most unequal in the world,” writes justice Nonkosi Mhlantla in the unanimous ruling.
As the judgment was being handed down on July 2, a group of housing activists gathered at the Sea Point Methodist Church to watch a livestream of the proceedings.
Many of these activists had occupied the nearby former Helen Bowden Nurses’ Home (renamed Ahmed Kathrada House) and the old Woodstock Hospital (renamed Cissie Gool House). These vacant government properties were occupied in 2017 in response to the province’s decision to sell the school.
The Tafelberg property comprises two adjacent stands owned by the province. One housed the Tafelberg Remedial School until June 2010, the other housed a block of rental housing units known as Wynyard Mansions.
By March 2015, after the land had been declared surplus, then premier Helen Zille and the provincial cabinet decided to sell the Tafelberg property to a private school for R135m. In March 2017, the national minister of human settlements wrote to the province, declaring a dispute over the sale.
In 2024, the Supreme Court of Appeal held that the province and the city have in place policies that are consistent with the principles of social housing under the relevant statutory framework.
However, the Constitutional Court has largely agreed with the activists. “Cities are a direct result of the concentration of commerce. Where people live directly influences their ability to access this commerce and certain careers and professions. Spatial inequality has burdened many South Africans with tremendously lengthy commutes requiring hours of travel each day, often before dawn,” runs the judgment.
“A housing system that only considers providing social and affordable housing on the periphery of urban centres falls short of the obligation to progressively realise the right to adequate housing. There is no satisfactory evidence that the purported pipeline projects would materialise in the future. Paper plans do not amount to constitutional compliance.”
After the judgement was read out, there were tears of relief. The feeling of vindication was overwhelming for the activists. In the mood to celebrate, they walked down the road to the Tafelberg site, a few hundred metres away.
Sheila Madikana was one of the speakers. She has been living in the occupied Ahmed Kathrada House since 2017 but had lived in Sea Point for decades. She says some people have been able to get jobs because they live in a well-located site.
“This was a long journey. I think people thought we were fighting a losing battle. We know what we want. The poor must also live in the CBD. We can’t be pushed out to the peripheries. We need to live here, where we wake up next to our jobs. The government failed us from the beginning. Reclaim the City showed people that we can open doors. We will live together.”
Nick Budlender, an urban policy researcher who contributed to the Tafelberg campaign, says the implications of the judgment are massive. “It will fundamentally reshape the way public land is used and increase pressure on municipalities and provinces across the country to leverage their public land holdings for transformation and wider public benefit.
“It will no longer be possible to uncritically sell well-located public land to the highest bidder without considering its potential, and the location of housing must now be seen as a key focus,” Budlender tells the FM.
Social housing refers to rental housing schemes for low- to medium-income households, defined by the government as families who earn a combined income of between R1,850 and R22,000 per month. The City of Cape Town has its own definition of affordable, usually targeting households earning less than R34,000.
In the social housing model, the city sells land to social housing institutions (SHIs), which receive a one-off subsidy from the Social Housing Regulatory Authority (SHRA). These homes are then managed by the SHIs and rented out to families. Social housing rental is capped at R7,326 a month.
This differs from open-market affordable housing, where the city sells land, usually at a discount, to developers for households earning less than R34,000. In this model, the upper-end units usually cross-subsidise the cheaper ones. This model does not require state subsidies.
Both these models have challenges. In parliament last year, the portfolio committee on human settlements expressed “grave concern over delays” and the lack of a plan to unblock stalled housing projects.
Prof Ruth Hall, director of the Institute of Poverty, Land and Agrarian Studies at the University of the Western Cape, agrees that the judgment is significant. She cites the court’s interpretation of the Government Immovable Asset Management Act as particularly important. “There has to be consideration of the public interest, including for well-located land for housing, before the city or province disposes of land in the future.”
According to Hall, an important aspect of the judgment is that even if the city or province doesn’t have funds to develop affordable housing, it doesn’t mean that they can declare it as surplus and dispose of it. They would have to engage with the national department of human settlements.
“I expect that the sort of predictable tug-of-war between city and province on the one hand and the national government will continue,” says Hall.
“This judgment provides the first judicial interpretation of section 25(5) that we’ve had since the constitution was adopted.
“We will need a very active civil society to monitor and apply pressure to take us to the next level of making these rights real. Public property is such that many parts of the state want to see it as a source of revenue. It takes all people in society to remind the government that its role is not to reap the highest revenue but to deliver the maximum value for the people.”
Ndifuna Ukwazi activist Buhle Booi says they are happy with the judgment.
“This is a victory for the domestic workers of Sea Point, for the working-class people of the city and the country. This is a landmark judgment that will tell governments and municipalities that public land is not something to be sold, a mere commodity. It must first be prioritised for its social value. It must be used to address inequalities and the harsh realities of our past.”
For its part, the City of Cape Town says it has made significant progress in plans to develop affordable housing and welcomes the opportunity to report to the court.
Carl Pophaim, mayoral committee member for human settlements, says: “More sites have been released in this term of office alone than in the decade prior, under the city’s mayoral priority programme to accelerate affordable housing land release. The city’s overall pipeline has now grown to 12,000 affordable housing units in well-located areas, including the CBD and other economic nodes.”
Western Cape MEC for infrastructure Tertuis Simmers says the judgment reinforces the need for accelerated affordable housing and mixed-use development. “We respect the judgment and will carefully consider its implications,” says Simmers.
“As the Western Cape government, we remain committed to giving effect to the court’s orders and will engage constructively with all relevant stakeholders to comply within the prescribed timeframes. South Africa’s housing challenge cannot be addressed through isolated projects alone.”
Budlender says a lack of money and the SHRA’s inability to effectively manage social housing programmes now pose the greatest risk to progress in tackling spatial apartheid. “There are dozens of great sites around the country that are ready for social housing development, but all progress is currently blocked.”
While the City of Cape Town has made progress in releasing land, actual development remains extremely slow. “Many projects that were announced close to two decades ago are still incomplete. Worryingly, the city has expanded the definition of affordable housing so that it doesn’t speak to the actual income dynamics of people who are most in need of homes,” he adds.