The SCA has upheld an appeal by the Western Cape Government and the City of Cape Town, and set aside two previous High Court orders declaring the sale of a Sea Point property, known as the ‘Tafelberg’ site, to be unlawful, reports GroundUp.

Activists, including Ndifuna Ukwazi and Reclaim the City, were fighting for the 1.2 hectare prime site to be used for social housing. They accused the city and the province of not complying with an obligation to ‘reverse apartheid spatial design’ and to provide social housing in central Cape Town. 

In a ruling handed down on Friday, the SCA said the ‘province and the city had acted lawfully in wanting to sell the land for R135m to a private school', and confirmed that there was no obligation on government to provide social housing in a specific location.

The matter was heard by the SCA in February 2023.

In 2020, the Western Cape High Court set aside the province’s decision to sell the property.

The sale decision was again set aside in a separate challenge by the Minister of Social Development, who complained that she should have been consulted and that the province had not adhered to the Intergovernmental Relations Framework Act.

The province and the city took both orders on appeal. 

Writing for the court, Judge Nambitha Dambuza said the respondents had acknowledged that the provincial Spatial Design Framework addressed the relationship between planning for future land use and affordable housing strategies. 

They also acknowledge the shortage of state-owned land that can be used for affordable housing, especially social housing, in the city centre.

She said the city had admitted that its housing delivery strategy had initially focused on delivering as many houses as possible. This resulted in the implementation of social housing programmes on the periphery of the city where land was cheaper, with the unintended consequence of entrenching the old apartheid spatial patterns.

The city had to consider the higher cost of housing delivery in the inner city.

However, Dambuza said that the High Court had made no reference to evidence relating to the social housing metropolitan ‘pipeline programme’ and evidence of a number of inner city social housing projects such as the Helen Bowden site and the Woodstock Hospital site.

‘The evidence of the appellants policy formulation and implementation disproved the allegations that they had no coherent housing delivery strategy and the province remained intent on not providing any social housing the CBD,’ the judge said.

‘Our courts have approached the assessment of procedural fairness and flexibility on a case by case basis, taking into account the facts and circumstances peculiar to each. It is difficult to imagine a more fair and balanced procedure in terms of which an intended disposal of state land can be conducted,’ Dambuza said, upholding the appeals, according to GroundUp.

Full GroundUp report

Judgment