SCA judgment still pending in critical Tafelberg housing case one year later

On 20 February 2023, the Supreme Court of Appeal (SCA) reserved judgment in the Tafelberg case, in which housing activists are challenging a bid by the Western Cape government to sell the Tafelberg site in Sea Point to a private school for R135-million. A year later, judgment has still not been handed down.

The attempt to sell the site, formerly the Tafelberg Remedial School, in 2015 was challenged by housing activists through protests and in the courts. In 2020, the Western Cape high court set aside the Province’s decision to sell the property. The judgment also described the state’s duties to address spatial apartheid. The Western Cape government then appealed against this decision in the SCA.

The applicants in the SCA case are the Western Cape government and the City of Cape Town. The respondents are members of activist organisation Ndifuna Ukwazi, and the national government.

The judicial norms and standards state that except for “exceptional cases where it is not possible to do so, every effort shall be made to hand down judgments no later than three months after the last hearing”.

Read more in Daily Maverick: Judgments delayed, justice denied

The SCA has been one of the best-performing courts and usually delivers judgments within the required three-month period, according to Mbekezeli Benjamin, Research and Advocacy officer at Judges Matter. This also reflects what is recorded in a database of reserved judgments that GroundUp is maintaining.

Benjamin said Judges Matter has been monitoring late judgment trends in the courts. “This Tafelberg case is the outlier. It has taken much longer than the other cases. That is something that really needs an explanation. The judges need to explain, hopefully in the judgment, why it has taken so long because it is really out of the ordinary.”

In response to questions sent to the Office of the Chief Justice, SCA president Justice MB Molemela wrote: “I confirm that steps have indeed been taken to ascertain why the judgment has not yet been delivered. I have received an assurance that the judgment will be handed down in the near future. My estimation is that the judgment will probably be delivered within the next three weeks”.

Benjamin said the case had been heard by a full bench of five judges, which included four permanent judges. The judges are Nambitha Dambuza, Dumisani Zondi, Ashton Schippers, Daisy Molefe and David Unterhalter.

“In 2023 the cases have generally taken much longer than in previous years. The fact that this has taken a year is a big deal,” said Benjamin.

He said the ruling would not only affect the Western Cape. “It will be a national issue. It will obviously affect how the different provinces and municipalities across the country relate to each other when it comes to housing delivery,” he said.

“There are not enough judges across the country,” said Benjamin. “A lot of the senior, experienced judges are reaching retirement age.” But, he said, this was not a reason for the Tafelberg case to be delayed.

Spacial transformation fallout

Meanwhile, the Western Cape Department of Infrastructure has issued a notice on its website saying that the site “has been identified as a strategic property to address spatial transformation”. The department said it had appointed environment professionals to “conduct various enablement and planning strategies and detailed studies to guide any future development explorations and secure appropriate development rights” on the property, which is described as “353 on Main”. A public engagement process would take place.

Ndifuna Ukwazi, along with Reclaim the City, have for eight years been calling for the vacant site to be used for affordable housing. The organisations said they were disappointed they had not been notified of this directly by the Province. They also questioned the name change of the site from Tafelberg to “353 on Main”.

Buhle Booi, head of political organising and campaigns at Ndifuna Ukwazi, said they would be engaging with the public participation process.

“It is of course very frustrating that these legal processes take time. We are hoping that the SCA will come back with the ruling soon. We were hoping that it would have been delivered by now.

“It is important to us because of spatial justice. There are domestic workers and security guards who work in Sea Point that have no place to call a home,” said Booi.

Justice Molemela wrote: “Civil society’s concern is perfectly understandable and justified. This is because the Judiciary has, in terms of the published Norms and Standards, committed itself to the effective, efficient and expeditious adjudication and resolution of all disputes. All the judges of the Supreme Court of Appeal are cognisant of this obligation, and therefore strive to abide by these Norms and Standards. Unfortunately, exceptional circumstances sometimes result in a few reserved judgments not being delivered within the specified times due to a variety of reasons, including the complexity of the case, the size of the record or unforeseen circumstances that affect the panel of Judges who adjudicate the case.” DM

First published by GroundUp.