The judgment by Western Cape High Court Judge Patrick Gamble on the sale of the Tafelberg site in Sea Point – co-signed by Judge Monde Samela – is an endorsement of years of work by activists calling for land and housing redress in Cape Town.

‘The judgment set aside the decision to sell the land, struck out regulations which undermined public participation, and sought to ensure that provincial and local government properly implement their duties to provide social housing and address spatial apartheid in the Western Cape,’ says attorney Daniel Linde, in an analysis of the judgment on the GroundUp site.

Gamble ruled that at the core of the attack on the sale was ‘the legacy of segregated living areas imposed on the people of our country by a plethora of legislation passed under the apartheid government’.

As a result, many people spend high percentages of their income to travel to work or amenities. Gamble said land access in terms of section 25 of the Constitution was ‘designed to alleviate inequality in terms of race, gender and other relevant criteria’, and that the state has to create conditions which enabled access to housing for people at all economic levels of society.

Having outlined a range of provincial and local policy regarding the use of public land, Gamble said it was necessary for both the province and the city to redress the legacy of spatial apartheid as a matter of constitutional injunction to ‘address apartheid’s shameful and divisive legacy of spatial injustice and manifest inequality’.

Gamble agreed that some regulations made under the Western Cape Land Administration Act, under which initial public consultations on the Tafelberg sale took place, were unlawful.

He found the comment process took place after the sale and its terms were agreed, though the Act and the Constitution both intend public participation processes to happen earlier.

Linde says as a result, the court deemed the relevant regulations invalid.

‘This means that the sale was unlawful. It also means that in future, the province will not be able to agree to a sale of public property before putting the question of what to do with the property to the public.’

Gamble ruled that because the sale was concluded on the basis of an unlawful participation process, it was invalid. But since a higher court might disagree, he also dealt with two other issues: that the Tafelberg site was not ‘surplus’; and that it did fall within a restructuring zone. Linde says even if the property had properly been declared as surplus, the court said the province should only have been willing to sell it in exceptional circumstances, and would have needed to show that the sale met compelling social needs.

As to whether Sea Point fell into a restructuring zone, both the city and the national government accepted that it did. Linde says the court declared that both the province and the city had failed in their constitutional duties to provide access to adequate housing and to land on an equitable basis.

They were ordered to file a report with the court, by 31 May 2021, describing the steps taken to date and their future plans.

In formulating this report, they must consult with all necessary organs of state and comply with the Social Housing Act, and the applicants will be permitted to file affidavits in response to their report and plans.

Full analysis on the GroundUp site