Court Mandates Housing Accountability; Cape Town Must Detail Affordable Plans

CONSTITUTIONAL COURT ORDERS CAPE TOWN AND WESTERN CAPE TO DETAIL AFFORDABLE HOUSING PLANS

“Paper plans do not amount to constitutional compliance.” Justice Nonkosi Mhlantla’s words, delivered on behalf of a unanimous Constitutional Court bench, mark the end of a decade-long legal battle over a single school property in Sea Point and the beginning of a new accountability regime for housing governance in South Africa’s inner cities.

Additional reference context is available at https://groundup.org.za/article/huge-victory-in-legal-fight-for-affordable-housing-in-cape-town/.

The judgment places the City of Cape Town and the Western Cape provincial government under strict legal obligation to demonstrate, in concrete terms, how they will reverse patterns of spatial inequality through affordable and social housing development. Both institutions must now submit detailed reports to the Western Cape High Court within three months, outlining current policies, projects and programmes for affordable housing in the central business district. Those reports must include a schedule of completed projects, projects under construction, budgetary resources spent, and any requests for national funding. Intergovernmental coordination efforts must also be accounted for.

The case centred on the Tafelberg School site in Sea Point, which the provincial government declared surplus in 2015 and sold to a private school. Housing activists from Ndifuna Ukwazi and Reclaim the City challenged the sale, arguing that the valuable inner-city land should have been used for affordable housing. The Socio-Economic Rights Institute of South Africa supported the case as a friend of the court. The national Minister of Human Settlements also intervened, contending that the national department should have been consulted before the province disposed of the property.

Justice Mhlantla framed the dispute as a fundamental constitutional question about how a democratic society addresses the enduring legacy of spatial apartheid. She noted that thousands of Cape Town workers travel daily from the city’s periphery in pre-dawn darkness to reach employment in the centre, a journey that testifies to systemic spatial injustice rooted in apartheid geography.

The court found that the City and the Province had perpetuated spatial inequality and failed to take reasonable steps to progressively realise the right to adequate housing in Cape Town’s inner-city areas. At the time the case was heard, the City had implemented no projects for social or affordable housing within the central business district, despite claims of a pipeline of future developments. Justice Mhlantla rejected those assurances, noting that several projects had been abandoned or stalled for more than a decade.

The court rejected arguments that high property prices and land scarcity, both legacies of apartheid, excused the government from its constitutional duties. Budgetary constraints were acknowledged, but the court ruled that the City and the Province must take reasonable steps to overcome them, including seeking national government funding. Location itself, the judgment emphasised, is not peripheral to housing policy but integral to assessing whether government action meets constitutional standards. There is no justification, the court stated, for excluding well-located, amenity-rich areas from social and affordable housing development.

Beyond the reporting obligations, the court declared unconstitutional the Western Cape Land Administration regulations that permitted public participation only after a valid contract for sale had been concluded. The province has 12 months to remedy that legislative defect. The court also found that the provincial government’s failure to inform and consult the national Minister of Human Settlements about the Tafelberg disposal violated cooperative governance obligations.

The province was ordered to pay the applicants’ costs, including the costs of two counsel across all court proceedings.

The Tafelberg sale itself has already been cancelled, and the Western Cape government has announced that affordable housing will be built on the site. The court nonetheless determined it was in the interests of justice to hear the matter and issue this broader ruling. The judgment, reported at groundup.org.za/article/huge-victory-in-legal-fight-for-affordable-housing-in-cape-town, will shape how government institutions across South Africa approach housing policy and spatial equity for years to come.

What remains to be seen is whether the three-month reporting deadline produces plans that satisfy the High Court, or whether the City and the Province return to court defending yet another set of assurances that fall short of constitutional compliance.