amicus curiae - Tafelberg - Constitutional Court - Social Housing - non-retrogression
SERI was admitted as amicus curiae in a Constitutional Court appeal against an order of the Supreme Court of Appeal (SCA) overturning the Western Cape High Court’s decision to set aside the sale of the Tafelberg property. In this matter, the Constitutional Court considered whether the Western Cape government and the City of Cape Town acted reasonably in fulfilling their obligations to redress spatial apartheid and to realise the rights of equitable access to land and adequate housing. It also includes clarification of what the law requires of the government in how it uses, manages and disposes of public land as well as how people are to be included and enabled to participate in decision-making regarding public land.
The Tafelberg property is a piece of property located in the Cape Town suburb of Sea Point, an area that is very close to job opportunities, public transport routes and social amenities like schools, hospitals and clinics. It, however, remains largely inaccessible to low-income individuals due to apartheid spatial planning.
In 2013, Western Cape Department of Transport and Public Works initiated a process to sell the Tafelberg property despite the Department of Human Settlements had expressing the need to use the property for social housing. In response, Reclaim the City launched an application in the Western Cape High Court challenging and interdicting the sale of the property.
In 2016 the parties agreed to put a stop to the sale and embarked on a public participation process. A study was commissioned to determine financial feasibility of social housing on the site, concluding that 270 social housing units could be developed on the site. Despite these findings and strong objections from activists, the Western Cape government proceeded with the sale, arguing that that social housing could be provided at alternative sites. In May 2017, Reclaim the City and Ndifuna Ukwazi approached the Western Cape High Court to have the sale set aside.
In 2020, the Western Cape High Court ruled in favour of Reclaim the City and Ndifuna Ukwazi. The court found that the Western Cape government and the city of Cape Town failed to comply with their statutory obligations under the Housing Act and the Social Housing Act which give effect to the rights under sections 25(1) and 26(2) of the Constitution. These provisions require the state to take reasonable and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis and to achieve the progressive realisation of the right of citizens to have access to adequate housing as contemplated in s26(1) of the Constitution. The court held that, by failing to comply with such obligations, the Western Cape government and the city of Cape Town had breached their constitutional obligations. Moreover, the High Court provided that this failure contributed to spatial apartheid in central Cape Town and ordered the Province and the City to comply with their obligations and to submit a detailed report under oath outlining past and future steps to address housing and land access issues in central Cape Town. The court also reviewed and set aside the sale of the Tafelberg property declaring it unlawful. The Western Cape government and the city of Cape Town appealed the decision to the SCA.
In April 2024, the SCA upheld the appeal and overturned the High Court’s decision to set aside the sale of the property stating that neither the Constitution nor housing legislation mandates the provision of housing in a specific location. Furthermore, the court held that both the provincial government and the city of Cape Town were fulfilling their social housing obligations and addressing spatial apartheid through other initiatives.
Ndifuna Ukwazi and the Reclaim the City approached the Constitutional Court appealing the judgment and order of the SCA. They sought to reinstate the High Court’s decision, which had set aside the sale of the Tafelberg property to a private entity for R135 million.
SERI joined the matter as amicus curiae in the Constitutional Court, at the heart of SERI’s submissions is the principle of non-retrogression as it applies to the disposal of public housing stock as well as the requirements of public participation as they apply to housing insecure communities. This principle prohibits the state from taking deliberate measures that result in a backward step in the enjoyment of rights. SERI submits that the Province and City’s policy to not provide affordable housing in central Cape Town, in preference to building units elsewhere and the selling of land to generate revenue is a retrogressive measure that requires justification and conflicts with jurisprudence that provides that a refusal by the state to provide emergency housing in the inner city is unconstitutional. Furthermore, international law, particularly the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter both of which South Africa has ratified, require that national government be involved in decision making that involves selling public housing. SERI further submits that the regulations of the Western Cape Land Administration Act that provide for consultation only after a sale is complete exclude meaningful participation of affected groups which is essential to consider alternative uses, such as social housing, protecting existing occupants, and imposing conditions on private buyers to develop affordable housing. Judgement was reserved.