July 9 2026 15:00
CAPE TOWN, SOUTH AFRICA
The Constitutional Court has handed down a judgment which will affect how the government approaches affordable housing throughout South Africa.
Bringing to a close nearly 10 years of litigation against the sale of the Tafelberg School site in Sea Point, the court put the City of Cape Town and the Western Cape government on terms to provide affordable and social housing within the inner-city. Cape Town has been loathe to do so for decades.
Both the municipality and the province were directed to submit reports to the Western Cape High Court within three months, detailing their plans and projects to redress spatial apartheid and progressively realise the rights of poor and working-class people through affordable housing. This is what numerous bodies have fought for years to achieve.
The government must take location into account when planning housing projects, as the City and the province have a constitutional duty to reverse “patterns of exclusion”, the court ruled.
Cape Town remains divided along racial and class lines, and poor and working-class communities are excluded from “amenity-rich areas” such as the CBD and Sea Point, Justice Nonkosi Mhlantla said in the unanimous ruling.
“Location is not a peripheral consideration in housing policy. It is integral to the reasonableness inquiry,” said Mhlantla.
The court case was brought by well-funded NGO, Ndifuna Ukwazi (NU) and Reclaim the City, and centred on the site of the former Tafelberg School in Sea Point, which the province had in 2015 declared “surplus” and sold to a Jewish school.
The legal battle reached the Constitutional Court in 2025. The Socio-Economic Rights Institute of South Africa (Seri) acted as a friend of the court.
The Minister of Human Settlements, Thembisile Simelane argued that the national department should have been consulted before any decision was made to declare the site as surplus. The minister sought an order reviewing and setting aside the decision.
The court proceedings resulted in the cancellation of the sale, and the Western Cape government has announced that affordable housing will be built on the site.
Mhlantla said that despite the Tafelberg case being “moot”, the court agreed to hear the matter nonetheless in the “interests of justice”.
She said the housing activists cried foul over the sale of the site while there was a need for inner-city social housing.
The City had said it was doing what it could to fulfil its obligations and had a pipeline of projects.
But the court said the City and the province had “perpetuated spatial inequality” and had failed to take reasonable measures to progressively realise the right to adequate housing in Cape Town’s inner city areas.
With regard to the public participation in the sale of the Tafelberg site, the court found that the province had conducted a tick-box exercise, with minimal indications that it was receptive to public input.
The court ordered that the province and the City must submit reports to the high court, within three months, setting out their current policies, projects and programmes for the provision of affordable housing within the CBD. The City must attach a schedule of what affordable housing projects have been completed, or are currently under construction, and what budgetary resources have been spent, and if national funding has been requested.
alistair@propertyflash.co.za
