- Constitutional Court rules that the location of housing is part of the constitutional right to adequate housing.
- Western Cape Government and City of Cape Town ordered to provide affordable housing in Cape Town CBD and Sea Point.
- Province and City must report back to the High Court within three months on plans to deliver affordable housing in well-located areas.
The Constitutional Court has ruled that the location of housing is a key factor in determining whether South Africans enjoy the constitutional rights to adequate housing and equitable access to land.
It has ordered the Western Cape Government and the City of Cape Town to provide affordable housing in Cape Town CBD and Sea Point.
The court found that the Province and the City failed to fulfil their constitutional obligations to progressively realise those rights, ruling that reasonable measures must include affordable housing in well-located areas to help redress apartheid spatial inequality.
Tafelberg dispute reached the Constitutional Court
The case arose from the Western Cape Government's decision to dispose of the Tafelberg property in Sea Point instead of using the well-located site for affordable housing. Community organisations and housing activists challenged the decision, arguing that the Province had failed to address apartheid spatial inequality by making affordable housing available closer to jobs, schools, healthcare facilities and public transport.
Although the proposed sale was later cancelled, the Constitutional Court found the issues remained of significant public importance because they affect how government-owned land should be used to fulfil the constitutional rights to adequate housing and equitable access to land.
Location is part of adequate housing
Justice NZ Mhlantla said, “The location of housing must be treated as a relevant factor in determining what constitutes adequate housing and equitable access to land, having regard to the constitutional imperative to redress the spatial injustice inherited from apartheid.”
The court ruled that reasonable measures to fulfil those constitutional obligations must include the provision of affordable housing within the former restructuring zone covering Cape Town CBD, Salt River, Woodstock and Observatory, as well as Sea Point.
It also declared that the Western Cape Government and the City of Cape Town failed to comply with their constitutional obligations through the implementation of their respective social housing programmes in Cape Town CBD and Sea Point.
Province and City must report back
The Constitutional Court ordered the Province and the City to submit sworn reports to the High Court within three months, setting out their current affordable housing policies, completed projects, developments under construction, projects under consideration, budgets, funding, coordination with other spheres of government and future implementation timelines.
The applicants will be entitled to respond to those reports before the High Court considers whether any further orders are necessary.
Public participation declared inadequate
The Constitutional Court also found that the Western Cape Government failed to conduct meaningful public participation before disposing of the Tafelberg property.
Justice Mhlantla said the Province “failed to meaningfully engage with the public and hold a meaningful public participation process” before the disposal of the property.
The court declared parts of the regulations under the Western Cape Land Administration Act unconstitutional because they allowed public participation only after a disposal contract had already been concluded. The declaration of invalidity has been suspended for 12 months to allow the Province to amend the regulations.
Province breached cooperative governance
In a related appeal, the Constitutional Court ruled that the Western Cape Government breached its constitutional obligations of cooperative governance by failing to inform and consult the national Minister of Human Settlements before attempting to dispose of the Tafelberg property.
The Province was ordered to pay the applicants’ legal costs, including the costs of two counsel, in the High Court, the Supreme Court of Appeal and the Constitutional Court in the main application. In the related appeal, each party was ordered to pay its own costs.
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