Tafelberg judgment appeal

The Tafelberg School judgment might be appealed.

The Western Cape High Court has postponed the application for leave to appeal the landmark Tafelberg School judgment until early 2021.

The application brought by the Western Cape Provincial Government and the City of Cape Town last Friday, November 13, was postponed by judges Patrick Gamble and Monde Samela.

This comes after the High Court set aside the province’s sale of the former Tafelberg School in Sea Point to the Phyllis Jowell Jewish Day School in November 2015 for R135 million.

Following the judgment on August 31, the school indicated that it would not be further pursuing the purchase of the property However, the Western Cape government said it would be applying for leave to appeal the court ruling due to the “extensive nature of the finding” and its potential implications.

They said the findings of the court could impact on the Western Cape Government’s core functions going forward, including the right of the executive to determine how and where their budget is allocated province-wide; the right to determine how to dispose of assets, in a transparent manner in order to raise funds for constrained service-delivery objectives; their right to operate within a participative democracy that is sufficiently flexible to enable them to do the job they have been mandated to do.

Housing activist organisations Ndifuna Ukwazi and Reclaim the City vowed to oppose the application for leave to appeal.

“The judgment has far-reaching implications for the use of well-located public land in central Cape Town to develop affordable housing and address spatial inequality,” they said.

They said in terms of the Supreme Courts Act, any party applying for leave to appeal must prove to the court that the appeal would have reasonable prospects of success or that there is some other compelling reason why the appeal should be heard.

In a joint statement issued to the media, Premier Alan Winde and Human Settlements MEC Bonginkosi Madikizela stated the Phyllis Jowell Jewish Day School had indicated to them that they do not intend to pursue their rights under this contract of sale any further – a decision which they said they 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 reconsider 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,” they said.

In court on Friday, Judges Patrick Gamble and Monde Semela raised questions on the status of the property and whether the property reversal had been finalised. They said the court needed clarity on the issue before a leave to appeal hearing could be heard.

The court heard that the withdrawal agreement had not been finalised. Representing the province, Advocate Eduard Fagan, told the court that there were conditions on the agreement to terminate the sale that would likely take time to conclude. He suggested that the court assume that the sale had been cancelled.

The judges said that in order to consider whether to grant leave for appeal, the correct facts needed to be before the court.