Landmark ruling sees R135m Sea Point school sale nixed, land to go for housing

A landmark High Court judgment has set aside the sale of the Tafelberg school property in Sea Point, ordering the Western Cape government and City of Cape Town to “address the legacy of apartheid spatial planning in central Cape Town and its surrounds”.

This was the instruction of Western Cape High Court Judge Patrick Gamble, with Judge Monde Samela in the long-running case surrounding the Tafelberg school in Sea Point, Cape Town.

The provincial government sold the site to the Phyllis Jowell Jewish Day School NPC in November 2015 for R135m.

But this was challenged by the organisations Reclaim The City, Ndifuna Ukwazi and several individuals. Among them was Thomaza Angela Adonisi, a nurse, who collaborated with several “working class” residents to promote “the right to land” in Cape Town.

The respondents in the case were several provincial departments, the premier, the day school and the provincial government in its entirety.

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In a summary, the court explained 10 core rulings in its full judgement.

First, “the Court set aside the sale of Tafelberg to the Day School, as well as the subsequent decision by the Province in March 2017 not to withdraw from the sale, on a number of grounds”.

“The Court found… that the relevant Provincial Regulations on which the Province was obliged to rely when concluding the sale were unconstitutional and invalid.”

Second, “the Court also held that the Province had not correctly applied the provisions of the Government Immovable Asset Management Act, 2007 in disposing of the state land upon which Tafelberg is situated, in that it did not first offer the land for use to the provincial department of housing”.

Third, “the Court further held that the Province had erred in concluding that the Tafelberg site did not fall within a restructuring zone for the purposes of developing affordable housing under the Social Housing Act, 2008”.

“The designation of such a zone would have entitled the Province to apply for a reconstruction grant from the national Department of Human Settlements in the event that it decided to develop affordable [housing] on the Tafelberg site.”

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Furthermore, the court also issued a declaratory order that “the Province and the City of Cape Town were in breach of their obligations under sections 25 and 26 of the Constitution (and the legislation promulgated thereunder) to advance access to affordable housing to those people who qualified for that form of accommodation”.

“The Court held that the Province and the City did not have suitable policies in place to facilitate and promote such access. The Court found that, as a consequence of these constitutional breaches, the Province and the City had not taken adequate steps to address the legacy of apartheid spatial planning in central Cape Town and its surrounds.”

In its judgment, the Court ordered the Province and the City to now “draw up a combined policy in order to address their respective breaches of the Constitution” and to report back to the Court in that regard by 31 May 2021.

The Province and the City were ordered to pay Reclaim the City’s costs.

But the judgement did not stop there. In response to a second application lodged in the matter, the court also ruled the national Minister of Human Settlements should have been consulted on the sale of the land.

Re-confirming its earlier ruling, the Court also granted the application by the Minister of Human Settlements and her department to review and set aside the sale of the property – and ordered the province to pay the national minister’s legal bill.

In response to the ruling, Mandisa Shandu, a director at Ndifuna Ukwazi, said: “We argued that the City, as well as the province, has an obligation to redress apartheid spatial planning, by using land for affordable housing.” The court had agreed.

Shandu said they had argued the sale of the land had been “very short-sighted, in the context of a huge land and housing crisis… and people struggling for access to housing, in places like Sea Point”. The site had been “a huge and important opportunity” to begin to undo the legacy of spatial apartheid.

“Second, the sale of the Tafelberg land has been set aside. So it’s a great victory! There’s great excitement. We look forward to the next steps, in advancing urban land justice.”

She said she looked forward to the 31 May deadline, by when the provincial and City administrations would need to report back to the court.

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