Tafelberg site judgment reserved

Ndifuna Ukwazi and Reclaim the City members outside the High Court in August last year.

The legal battle over the old Tafelberg School site continued in the Western Cape High Court on Friday, March 12, with Judge Patrick Gamble reserving judgment.

Housing rights activist groups, Reclaim the City and Ndifuna Ukwazi were in court to argue against the Western Cape provincial government and the City of Cape Town’s applications for leave to appeal the Tafelberg judgment.

The court heard arguments against a previous judgment that found the City and province had failed to comply with their constitutional and legislative obligations to address apartheid spatial planning in Cape Town, when the site was sold to the Phyllis Jowell Jewish Day School for R135 million.

After the court set aside the sale of the former Tafelberg site in August last year, the Phyllis Jowell Jewish Day School indicated that it would not be pursuing the purchase of the property further.

The Western Cape government announced in September that they would appeal the judgment due to what they called the “extensive nature of the finding” and its potential implications.

Ndifuna Ukwazi described the decision to appeal the ruling as irreconcilable with Premier Alan Winde’s public commitments to unlock the blockages that prevented the Tafelberg site from being used for the development of social housing.

They said Mr Winde had promised that where the province was involved, the MECs responsible would commit to unlocking, where they could, inner-city land for the development of social housing.

On Friday, the Ndifuna Ukwazi advocate, Peter Hathorn SC, argued that there was no denying that the Province and the City were not working together on the development of housing.

He stated: “Over 25 years all that the Province and the City can point to for the delivery of social housing in central Cape Town are projects that are still in their ‘pipeline’.”

Advocate Eduard Fagan, representing the Province, said the judges made a mistake by relying on legislation in reaching its decision rather than on the constitutional rights to housing and to gain access to land on an equitable basis.

Nazreen Bawa, representing the City, argued that the City has no legal obligation to address spatial apartheid by providing social housing in central Cape Town. “However, there is a constitutional obligation to take reasonable legal and other measures to allow people to gain access to land on an equitable basis,” she said.

Judge Patrick Gamble said this was a very important case, with a massive record. “It requires careful consideration. I therefore reserve judgment until towards the end of the second quarter of the year.”