Yesterday (November 25) the Cape Town High Court heard arguments in the landmark first day of the Tafelberg hearing in which #UniteBehind affiliates Reclaim the City (RTC) and Ndifuna Ukwazi (NU) are challenging the decision by the Western Cape Provincial Government to sell the well-located Tafelberg property to a private buyer, the Phyllis Jowell Jewish Day School, for R135 million in the face of the worst housing affordability crisis in the country. The Tafelberg site in Sea Point – almost an entire city block – provides a prime opportunity to redress spatial apartheid through the provision of well-located land for social housing.
Advocate Pete Hathorn, on behalf of Reclaim the City and Ndifuna Ukwazi, highlighted that Cape Town remains one of the most spatially divided cities in the country – with residential spatial patterns still divided along race and class lines.
Our main arguments relate to the Province and the City of Cape Town’s failure to comply with their obligations to address spatial apartheid as set out in sections 25(5) and 26 of the Constitution (the right to gain access to land on an equitable basis and the right to housing). We referred to the Province and the City’s inability to reasonably implement their housing policy and criticised the lack of an over-arching plan to make land available for affordable housing in central Cape Town.
The National Department of Human Settlements has launched a separate application against the Province which is being heard together with our application. Advocate Ismail Jaime argued that all three spheres of government – national, provincial and local – share responsibility for realising the right to housing. The National Department, the Province and the City are therefore required to cooperate and coordinate when it comes to the provision of housing. The Department argued that the Province failed to do this when it unilaterally decided to sell the Tafelberg property.
RTC and NU have persistently criticised the Province and the City’s failure to complete a single social housing development in central Cape Town in the last 25 years. Both the Province and the City does not dispute that the land that is suitable for affordable housing is finite and scarce. And so, when decisions to dispose of land are taken in an opaque, uncoordinated way it becomes difficult, if not impossible, to strategically use land to address spatial inequality.
As Advocate Hathorn stated: “The Province and the City are obliged to assist low to medium income families to gain access to the city – this cannot be deferred for another 10 to 15 years in the name of progressive realisation. The longer it is deferred the worse spatial injustice will become. Action needs to be taken immediately and the impasse in priorities needs to be addressed.”
Throughout this week, the Province and the City will have to confront six “uncomfortable truths” raised by the applicants:
The Province and the City acknowledge that they have an obligation to redress spatial apartheid.
The Province and the City have an obligation to do this in central Cape Town.
The Province and the City cannot meaningfully speak or act on transformation without prioritising access to housing in central Cape Town as the primary economic node. In fact, in his affidavit, Cape Town City Manager, Lungelo Mbandazayo, concedes that facilitating access to residential housing for poor residents closer to work and amenities is critical for transformation and must be pursued.
The Province’s policy and approach are the root cause of the inability to unlock land for transformative purposes. A critical moment exposing this was in the process leading up to the sale of Tafelberg when the Provincial Minister of Transport and Public Works explicitly said that there was “neither the intention nor desire on the part of the provincial government to relocate poor people into Cape Town’s city centre and surrounds”.
It is clear that the government lacks any over-arching plan on how to strategically address spatial apartheid in Cape Town.
It is in this context that we have approached the court to: declare that the Province (and the City) failed to comply with their constitutional obligations; instruct them to comply; and produce a report for the court outlining what steps they will take to give effect to their obligations. Court will continue until Thursday November 28.