Over the last few weeks, we, our legal team and officials have closely studied the judgment handed down by the Western Cape High Court regarding the sale of the Tafelberg school by the previous administration in 2017.
We respect the Western Cape High Court, and proper consideration had to be given to the legal reasoning and orders provided by the judges in this case, before a decision was taken on whether a need existed to appeal the judgment or not.
It is important to highlight upfront that this was an extremely complex judgment spanning over 200 pages that included a variety of different orders. Due consideration needed to be given to each of these orders in making a decision on our next step.
Before we turn to our response, however, it is important to refresh on some key points and latest developments.
The Western Cape Government is committed to achieving spatial redress:
The decision to sell the property in Sea point known as Tafelberg to the successful bidder, The Phyllis Jowell Jewish Day School, was taken in the previous political term, by a cabinet different to the current one.
Whilst that agreement of sale was the impetus for the litigation which has followed, it’s clear that the real aspects of contestation argued before the Western Cape High Court, and therefore the judgment’s consequences, span far beyond this particular site and this particular purchaser, which has been unable to take ownership of the site for over 2 years already as a result of the litigation.
The Western Cape Government can now confirm that, after reflecting on the recent judgment handed down by the Western Cape High Court, the Phyllis Jowell Jewish Day School have indicated to us that they do not intend to pursue their rights under this contract of sale any further - a decision which we believe will result in the mutual termination of the sale agreement and the return of the property to the Western Cape Government’s property portfolio.
Its return to our portfolio will give us the opportunity to re-consider its future use in light of the priorities of this new administration and I am grateful to the board of Phyllis Jowell Jewish Day School for informing us of their decision in this regard and which will allow its use to be considered afresh.
On this point, I want to make clear that the Western Cape Government is absolutely committed to achieving spatial redress.
All levels of government across South Africa can and must do more in this regard, and we acknowledge this.
Redressing the wrongs of our painful past is a priority of our administration. We swore an oath to the Constitution of the Republic of South Africa, and we intend do all we can to make sure our province becomes inclusive, knowing that there are no quick fixes, and that this is a road we must walk together.
To this end our government now intends to engage widely and with all those interested, as we work towards building a fairer, more inclusive Western Cape. This includes with Reclaim the City and Ndifuna Ukwazi.
Constructive engagement is in the best interests of all of us, including our most vulnerable residents, who are top of mind when it comes to the realization of socio-economic rights.
However, we must be crystal clear: our engagements must and will be premised on respect for the rule of law in our province and country. Incitement to illegally invade property for any reason, including land that is already earmarked for social housing, must come to an end.
We therefore call on Reclaim the City and Ndifuna Ukwazi to join us in condemning the illegal occupation of Helen Bowden Nursing Home and other properties which have been ear-marked for affordable housing in central Cape Town and to make every effort not to further hamper our efforts to develop these sites for our most vulnerable residents. Developing these sites will contribute greatly to redressing spatial apartheid. It is time for all to show their genuine commitment to this goal.
The Tafelberg Judgment by the Western Cape High Court:
The Western Cape Government embraces the Western Cape High Court’s finding that we have a constitutional obligation towards the redress of the effects of spatial Apartheid, in the context of both planning and resource allocation in the Western Cape. This has never been in dispute – not before, during or after the case.
The difficulty we have is that the judgment does not rest there: the court has made a range of orders that will fundamentally impact our ability to competently manage this province and govern it as an independent sphere of government as envisaged by the Constitution.
As noted by our Cabinet today, a consideration of the judgments in detail shows there are in essence two main aspects to it:
1) The review and setting aside of the deed of sale:
- The agreement of sale of the Tafelberg property has been set aside (on the basis of a range of underlying findings that will have material consequences going forward); and
- A broad, structural interdict was put in place in terms of which the Western Cape Government and the City of Cape Town have been ordered to file a report to the court detailing joint, future plans and integrated policies with regard to our “statutory obligations” under the Social Housing and Housing Act, within an area which the court has now defined to be Central Cape Town, and on which only the applicants and Ndifuna Ukwazi have been invited to comment.
Notwithstanding that the setting aside of the agreement of sale by the court will become academic given the stance adopted towards it by the purchaser, there are remaining aspects of the judgment that are not so moot and will, we believe, impact on the ability of the Western Cape Government to deliver on its mandate to such a material degree as to amount to judicial over-reach.
- Declaring the public participation process that applies under the regulations of the Western Cape Land Administration Act to be unconstitutional,
- Finding that the provisional list of Restructuring Zones, which had merely been published for comment under the Social Housing Act, have the force of law and that the Western Cape Government should in any event have relied on other organs of state to interpret this draft legislation,
- Imposing a judicial definition of what is Central Cape Town,
- Imposing on the Western Cape Provincial government an obligation to consult with other organs or departments in the State, and always the National Minister of Human Settlements in respect of any decision to dispose of our land in the future, without a reciprocal obligation in place and with the added implication too that should any such department advise they want it, we are obligated to give it to them. This effectively nullifies our ability to use our assets to raise revenue for other service delivery imperatives, should we so decide.
We will therefore be applying for leave to appeal to the Supreme Court of Appeal.
To be clear, notwithstanding any return of the property to the Provincial portfolio that may ensue, an appeal is still required in respect of the extensive nature of the finding and order of the court underlying its decision on the sale itself, as outlined above, given their impact for all government departments and organs of state which would, if unchallenged, be binding henceforth.
2.The broad, structural interdict:
In so far as this aspect of the judgment is concerned, whilst the court had a discretion in this regard, we are of the view that the extent and breadth of this aspect of the order has far-reaching and concerning implications for us as a government too.
This is so because our core constitutional role as a provincial government is to provide education, healthcare and social services, within a well-maintained public infrastructure environment, as well as the progressive realization of the rights of access to land and resources, including housing for those who most need it.
We must do so on a continual, progressive and responsible basis, in the context of severely constrained budgets, on a province-wide basis. The multi-faceted aspects of such service delivery is recognized in the discretion organs of state have, within the applicable legislation, to achieve their goals, and it is for this reason that the Court in this case could not point to a specific section in either the Social Housing Act or the Housing Act which obligates Provincial Governments to provide social housing in particular suburbs.
The context in which all our obligations must be assessed cannot, in our view, be ad hoc or site specific, or indeed limited to the City of Cape Town, but rather has to be seen in a province-wide context and in the face of other equally compelling and competing rights and obligations that must be met too.
The findings of the court in this regard impact on the Western Cape Government’s core functions going forward including:
- the right of this executive to determine how and where our budget is allocated province-wide,
- our right to determine how to dispose of assets, in a transparent manner in order to raise funds for constrained service-delivery objectives,
- our right to operate within a participative democracy that is sufficiently flexible to enable us to do the job we have been mandated to do,
- our obligation to act independently of both the City of Cape Town and the National Government with regards to our own policies and assets and in accordance with the Constitutional framework,
- our right and obligation to determine the reasonable meaning and effect of legislation independently of any interpretations that may be applied by other organs of state; and
- the extent of the obligations of this province to consult with other departments or organs of state in other spheres of government with regard to the use of our assets.
On this basis we are of the view that we have no choice but to appeal this aspect of the judgment too.
The Western Cape Government to push ahead with spatial redress projects:
The decision to appeal by no means affects our commitment to continue and even ramp up our efforts to address the spatial inequalities of the past, by providing affordable, well-located housing across our province.
- Construction on the first phase of the Conradie Better Living Model site at Pinelands has begun. Over 400 social housing opportunities will be created in the first phase, and affordable housing options will ultimately make up 49% of this development once completed. Pinelands is just outside of the CBD, and has easy access to Goodwood as well as Epping Industrial, and the site is within walking distance of train stations. Two new, affordable schools will also be constructed as part of the development.
- The Belhar CBD project is another mixed-use project, close to the Bellville CBD. It will provide social housing, FLISP and housing for military veterans. It will also provide student accommodation, with a 2700-bed residence to be built on the site by UWC- providing affordable accommodation for students close to the university.
- The Helen Bowden site was identified as the first phase for the construction of social and mixed-use housing in what is known as the Somerset Precinct re-development. This is an 11-hectare site, right next to the V&A Waterfront, owned by the Western Cape Government, and thus allows the development of cross-subsidized housing at scale. The rezoning of the property was approved some time ago, and it is ironically the invasion of the Helen Bowden building, on the active encouragement of Reclaim the City, that is now stalling the development of this site.
The Western Cape Government has started to develop an inclusionary housing policy:
Beyond these developments, the Western Cape Government, through the Department of Environmental Affairs and Development Planning, is also currently in the process of developing an inclusionary housing policy. Such a policy, which will once again apply on a provincial basis, enables us to further promote spatial redress through the exercise of our provincial planning constitutional competency.
The Western Cape Government is committed to providing spaces which allow people to live a dignified life of which they can feel proud, and we will continue to pursue innovative methods and partnerships that will allow us to make meaningful change in people’s lives.
Notwithstanding our filing of an appeal in this matter, the very fact of this litigation has given us cause to pause and reflect on the need to identify even more well located, affordable housing in the Western Cape. Our Department of Transport and Public Works is doing just that, along with our Department of Human Settlements, but we need the assistance of national government to get it done.
Large parcels of national-owned land such as Ysterplaat, Culemborg, Wingfield, Denel and Youngsfield still lie vacant or underutilized and must be given up for better, more rational purpose now. It is only in combination with the National government, in terms of getting both access to land and funding that real progress towards spatial redress on those large land parcels can be achieved.