03/07/2026
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The Constitutional Court has made a damning judgment against the Western Cape Government and City of Cape Town related to social housing. In a unanimous judgment read out by Justice Nonkosi Mhlantla, the apex court set aside the Supreme Court of Appeal’s ruling in the Tafelberg case and declared that these spheres of government failed to meet their constitutional obligations to address apartheid-era spatial inequality. It also confirmed that the province’s sale of the Tafelberg site in Sea Point was unlawful. This matter has been ongoing for the past decade.
Some of the ConCourt's findings and declarations:
- The Court found that by the time the answering affidavits were filed, the City of Cape Town had not implemented any social or affordable housing projects in or near central Cape Town or near economic nodes, in a manner that addresses spatial injustice.
- Its completed projects were largely situated in townships or peripheral areas.
- Although some of these areas are geographically within 20km of the CBD, the Court emphasised that spatial injustice is not measured by distance alone; adequacy depends on access to employment, transport, infrastructure, social amenities and community life.
- The Court found no justification for the City’s policies’ lack of geographic specificity and their exclusion of well-located, amenity-rich areas, such as Sea Point, from consideration for social or affordable housing.
- The Court found that paper plans and incomplete undertakings do not amount to constitutional compliance.
- The Court held that the City could not invoke land scarcity or high market value to evade its constitutional duties, because those very conditions are legacies of apartheid spatial planning.
- The Western Cape Government failed to justify its lack of affordable housing in Cape Town’s inner city, including Sea Point and other areas near economic nodes.
- The Court held that the Province’s focus on housing delivery on the urban periphery, while important, does not discharge its constitutional obligations under sections 25(5) and 26 [Constitutional clauses which relate to housing and property].
- Budgetary constraints may affect how the Province balances its obligations, but they do not permit it to fulfil one aspect of the housing duty while effectively neglecting another.
- If resources are constrained, the Province must take reasonable steps to address that, including seeking national funding where appropriate.
- The Court held that the Province had not adopted a coherent, concrete strategy to provide affordable housing in well-located areas.
- The Court held that the Province’s reliance on cheaper peripheral development perpetuates spatial inequality and fell short of the constitutional standard of progressive realisation of access to adequate housing.
- The Court declared that the Province failed to meaningfully engage with the public and to hold a meaningful public participation process regarding the disposal of the Tafelberg property.
- Sections of the Western Cape Land Administration Act were declared unconstitutional and invalid.
- The Court suspended this declaration of invalidity for 12 months from the date of judgment to allow for the defect to be remedied.
[Picture: Robyn Park-Ross / Ndifuna Ukwazi]
