Cape Town’s Tafelberg case goes to ConCourt — activists call for coordinated affordable housing plan

A landmark case involving the future of Cape Town’s Tafelberg site in Sea Point reached the Constitutional Court on Tuesday, 11 February, with housing rights organisations Ndifuna Ukwazi and Reclaim the City seeking to appeal against the 2024 ruling on the matter by the Supreme Court of Appeal (SCA).

While Ndifuna Ukwazi and Reclaim the City have long fought for the Tafelberg site to be used for affordable housing, they noted in their heads of argument submitted to the Constitutional Court that the property symbolised “a broader campaign for affordable housing in and around central Cape Town”.

The applicants proposed that an effective remedy to the problem of spatial injustice in the city needed to include:

• A comprehensive audit to establish the full extent of state-owned land which could be made available for affordable housing in central Cape Town;


• A co-ordinated programme formulated by the city and provincial government to determine how much of this land should be used for affordable housing; and


• The formulation and implementation of a timetable for affordable housing development.

Ndifuna Ukwazi and Reclaim the City further maintained that a structural interdict was needed to ensure that the city and the Western Cape government developed a comprehensive and coordinated plan for affordable housing in central Cape Town.

“It is common cause that state land is a necessary ingredient for developing the affordable housing that is necessary to address the problem [of apartheid spatial planning] and it is clear that there is a substantial amount of state land in and near the inner city,” said advocate Peter Hathorn, counsel for Ndifuna Ukwazi and Reclaim the City, before the Constitutional Court.

“To return to the question of the importance of the case, we would suggest that this case has the potential to change the face of the City of Cape Town.”

The ConCourt sitting coincided with the 59th anniversary of District Six’s declaration as a whites-only area under the Group Areas Act. It also came at a time of rising political tensions around issues of land reform in South Africa, triggered by the signing of the Expropriation Act into law in January.

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Mpho Raboeane, executive director of Ndifuna Ukwazi, said, “The Tafelberg case is a defining test of South Africa’s commitment to undoing spatial apartheid… We now look to the courts to clarify the state’s obligation and uphold the constitutional vision of spatial transformation.”

Long legal battle

The Tafelberg site has been at the centre of a legal battle between the housing rights groups and the Western Cape provincial government since 2016, after the province arranged to sell the property to the Phyllis Jowell Day School, a private school, for R135-million. The decision sparked outrage among housing activists, who argued that the property should be used to provide social housing.

In August 2020, a judgment issued by the high court in Cape Town set aside the decision to sell the land and called on both the Western Cape government and the City of Cape Town to “redress the legacy of spatial apartheid” and provide a joint report on the steps taken to progressively realise the right of citizens to have access to adequate housing.

The SCA overturned the high court order in April 2024, upholding an appeal brought by the provincial government and declaring the processes followed in the sale of the Tafelberg site to be lawful.

Read more: Tafelberg — a battle for justice, inclusion and the right to the city goes to ConCourt

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Both the Western Cape government and the City of Cape Town submitted that Ndifuna Ukwazi and Reclaim the City’s application for leave to appeal against the SCA judgement in the Constitutional Court should be dismissed.

In its heads of argument, the provincial government stated that while it accepted it had an obligation to “foster conditions” that enabled citizens to “gain access to land on an equitable basis”, that didn’t necessarily translate into an obligation to make land available for affordable housing in an area designated by the high court and at a point in time determined by Ndifuna Ukwazi’s court application.

“It is much more expensive to provide housing in the centre of Cape Town than more outlying areas of the city, which means government can provide more housing opportunities, accommodating more families, away from the city centre. But there’s been a shift at all levels of government… with greater emphasis being placed on spatial integration,” said advocate Eduard Fagan, counsel for the Western Cape government, before the Constitutional Court.

Ndifuna Ukwazi and Reclaim the City have argued that at the time they launched their application challenging the sale of the Tafelberg site, no affordable housing had been developed in central Cape Town since 1994.

Fagan said that when the Western Cape government signed its answering affidavit in 2018, 42 projects were in the social housing pipeline for the city, a few of which fell in the central Cape Town area.

The City of Cape Town’s heads of argument stated that both the high court and the SCA made factual findings in support of the city when it came to the provision of social housing.

“Included in this, and which is a consistent theme of both judgments, is that… the City had taken reasonable steps, within its means, to provide social housing in and around Cape Town [and] there was no specific legislation which required the City to provide social housing in a particular location,” it said.

The Constitutional Court reserved judgment when the parties’ arguments concluded on Tuesday.

Site developments

On 30 January, less than two weeks before the Constitutional Court hearing, the Western Cape government announced a proposal for the redevelopment of a portion of the Tafelberg site.

“In line with the Government Immovable Asset Management Act, the provincial Department of Social Development (DSD) has formally requested that the Tafelberg site, specifically the portion formerly used as a school, not be considered for disposal until such time as its possible use for the delivery of a range of social services that are required in that area can be fully assessed. This now makes the property no longer surplus to government requirements,” said Tertuis Simmers, Western Cape Member of the Executive Committee for infrastructure.

Western Cape MEC for social development Jaco Londt said the department would use the opportunity to broaden its “social services footprint”, particularly to address the shortage of residential services for persons with disabilities and older persons.

Simmers noted that the “presumed obligation” of the provincial government to use the site for affordable housing had been explored extensively before the courts.

“Unlocking the development potential at the Tafelberg site for the delivery of much-needed social services and affordable housing will result in the optimum use of this site by the government,” he said.

Ndifuna Ukwazi acknowledged the Western Cape government’s announcement, describing it as “vague”. The organisation reaffirmed its commitment to seeking clarity from the Constitutional Court “with respect to the government’s obligations in using public land”.

“We need a firm commitment to affordable housing on Tafelberg, not mere exploration. Nine feasibility studies on Tafelberg have already shown that affordable and social housing are possible on the site. What is being explored when the housing crisis continues to compound?” said Buhle Booi, head of political organising at Ndifuna Ukwazi.

On Saturday, 8 February, Reclaim the City and Ndifuna Ukwazi held a protest outside the Tafelberg site in Sea Point, demanding a firm commitment from the government that land would be used to address the need for affordable housing in Cape Town. DM