Judges presiding over an application for leave to appeal a landmark ruling of the contested Tafelberg site in Cape Town have demanded clarity on the status of the sale contract, says a Weekend Argus report.

The Western Cape High Court found that the sale of the property to the Phyllis Jowell Jewish Day School for R135m was ‘unlawful and unreasonable’ and set it aside on 31 August.

The provincial government and the city applied for leave to appeal the judgment to the SCA while the school did not.

Judges Patrick Gamble and Monde Sabela wanted the legal representatives for the provincial government to satisfy the court on the status of the sale contract.

In a press statement on 18 September, Premier Alan Winde and Public Works MEC Bonginkosi Madikizela said following the judgment, the school indicated to the provincial government it did not intend to pursue its rights under the contract of sale.

Asked by the judges on Friday whether the matter was ‘moot’ or not, the legal representative for the province, Advocate Eduard Fagan SC, said it would take months before certain sale suspension conditions were fulfilled. If the sale agreement was moot then there would be no need to send the matter to the SCA.

‘Before we entertain the leave for application we would require clarity ... we need to know what the position regarding the sale contract – we need facts – we cannot send 7 000 pages to Bloemfontein,’ Gamble said.

The leave for appeal application was based on several reasons, including the argument by the city and province that they did not have an obligation to provide social and/or affordable housing in a specific area, notes Weekend Argus.

But Ndifuna Ukwazi and Reclaim the City, which challenged the sale of the property, and described the judgment as ‘progressive’, would argue that province and the city had to take reasonable measures to give effect to the right to gain access to land on an equitable basis and the right to housing – and not providing social and/or affordable housing in central Cape Town would be unreasonable, and therefore unconstitutional.

Central Cape Town, they argued, was the most significant concentration of business and employment in the city and the region, with more than 200 000 people commuting into the city every work day.

The leave to appeal application was postponed to the first quarter of 2021.

Full Weekend Argus report (subscription needed)