Tafelberg site ownership question stalls Western Cape government’s appeal to Supreme Court

Only once the sale of a highly contested state property was confirmed to be reversed, can the Western Cape government lodge an appeal in the Tafelberg saga. This was the order from the Western Cape High Court on Friday. 

In March 2017, the provincial government (then under premier Helen Zille) sold the 1,7 hectare school property in Sea Point, Cape Town. At the time, the province wanted to use the proceeds from the sale – R135 million – to purchase office space for the Western Cape Education Department. However, housing activists claimed the site should be used for social housing instead. Activist organisations Reclaim The City and Ndifuna Ukwazi then took the sale up for review. This case was heard in November 2019. 

In August, in a lengthy judgment, the court overturned the sale of the Sea Point property and, in addition, ordered both the City of Cape Town and Western Cape government to create an inclusionary housing plan, which the court wants an update on by May 2021. 

Read in Daily Maverick: Landmark Tafelberg ruling: Western Cape High Court strikes a blow against apartheid spatial planning 

In September however, the province and City of Cape Town filed papers to appeal the judgment. According to GroundUp, the province claimed that it has no obligation to provide social housing, while the city argued in its appeal there was a conflation between province and city on who should provide social housing. The province wants to take this matter on appeal to the Supreme Court of Appeal in Bloemfontein. 

On Friday,13 November at the Western Cape High Court, a bone of contention emerged: who does the Tafelberg property belong to? In September, the school indicated that it would not be appealing the court’s order, nor continue with the sale – meaning the property should be back in the province’s property portfolio. 

Advocate Eduard Fagan SC, representing the Western Cape government, argued the leave to appeal hearing must continue despite questions raised by Judges Patrick Gamble and Monde Semela on the status of the property. Fagan said clarity was needed, as the costs for the court appearance came from the public purse.

Judges Gamble and Semela then took a break to discuss whether or not the hearing should continue, without clarification on the property transaction.  

After the break, Fagan told the court an agreement between the province and day school “will take months to complete” – but if needed, he would keep the court updated on the progress of the sale. 

Judge Gamble said before they can hear the appeal, they need to know the status of the property, while Judge Semela questioned if the property reversal had been completed yet. Judge Gamble said the court required clarity on this issue before a leave to appeal hearing could be heard. At this point, without clarity on the property’s status, “it’s all up in the air”. 

Outside court, executive director of Ndifuna Ukwazi, Mandisa Shandu addressed supporters who came to support the organisation. After she explained the court process, she said, “No matter what happens, we have stopped the sale – and that’s powerful, that’s profound”. 

1. On Friday, 13/11 the Western Cape High Court heard a leave a to appeal application in the Tafelberg matter.

Mandisa Shandu, the executive director of Ndifuna Ukwazi addressed supporters outside the court.@dailymaverick pic.twitter.com/d4TBP07PrG

— Suné Payne (@SunePayne) November 13, 2020