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The case concerns the Western Cape provincial government’s decision to sell a Sea Point property to a private day school instead of using it for social housing.
Social activist groups Reclaim the City and the Ndifuna Ukwazi Law Centre took the province and the City of Cape Town to court to address this. The national Department of Human Settlements launched a separate case against the province for not consulting the national minister prior to making the decision to sell. The cases were heard together this week.
Close to 30 spectators watched intently from the gallery.
Advocate Emma Webber spoke for the Social Housing Regulatory Authority concerning the restructuring zones, and the obligation to redress spatial injustice.
She addressed the fact that the Tafelberg property was not in a restructuring zone.
The national minister decides restructuring zones across the country. Properties in these zones are eligible for a restructuring capital grant from the national government to, for example, build social housing.
The province has used the fact that Sea Point is not in a restructuring zone to explain its decision not to build social housing on the Tafelberg site. The site would not be eligible for the restructuring capital grant.
But Webber disputed this reasoning, saying the problem could have been avoided altogether had the province simply conferred with the national minister.
“It is common cause that Cape Town is a spatially divided city,” she said, acknowledging the remaining footprint of apartheid.
She added the CBD was only a few square kilometres and yet it accounts for 30% of the city’s workforce.
Webber said in terms of spatial injustice, there was no questioning the need to address housing around the city centre.
“It’s always going to be more expensive to build housing in well-located areas than on the outskirts, but that is what is entailed in this obligation [to address spatial apartheid]. If it’s always cheaper to build on the outskirts, this obligation will never be fulfilled.”
Finally, advocate Pete Hathorn stood up to make closing arguments for Reclaim the City and the Ndifuna Ukwazi Law Centre.
Most spatially divided city
Hathorn stated the price of well-located land and housing was the driving force behind ongoing spatial injustice. “Cape Town is one of the most spatially divided cities in the country, separated by race and class.”
He said urban regeneration had tended to force low-income earners out of the city centre.
“Cape Town still very much resembles the make-up of the city in the 1970s. It is less diverse and more segregated now than it was 50 years ago,” Hathorn added. “The applicants’ rights and the state’s obligations are two sides of the same coin. The state needs to implement a reasonable housing programme in central Cape Town.”
Citing the school’s argument that it could not find another property, Hathorn emphasised the need to utilise the land that was left.
He said the province was “patting themselves on the back” for selling off one of these remaining properties without due consideration for the long-term obligations to transform the city, calling the decision “blindingly short-sighted”.
Hathorn cited a 2011 census that noted 47% of households have a monthly income of less than R3 200, 14% earn between R3 201 and R6 400, 13% between R6 401 and R13 000, 12% between R13 001 and R26 000, and 14% more than R26 000.
He then read a section of an affidavit submitted by a former Sea Point resident who had experienced apparent hardships since being forced to move out of the city. “To suggest that someone in this capacity is not deserving of relief of affordable housing is to disregard the hardships she has faced.”
Hathorn responded to the City’s argument that it was unfair to say it had done nothing in 25 years. It argued the Social Housing Act only came into effect in 2009, while the Spatial Planning and Land Use Management Act came into effect in 2015.
Obligation to redress spatial injustice
Hathorn noted this suggested the obligation only became apparent in 2009, which was not the case pleaded by the City and province who both acknowledged an ongoing obligation to redress spatial injustice.
Advocate Coriaan de Villiers concluded the applicants’ argument and spoke about a restructuring zone. The declaratory relief sought by the applicants is that Sea Point falls within it.
She said the notices published in 2011 and 2017 were the designations for restructuring zones that the entire social housing programme relied on, and one cannot question these zones for the sake of argument in this case.
“You’ve given us lots to think about, it’s going to take time,” said Judge Pat Gamble. “The normal time period is about three months, but that target is overtaken in this case. Due to the nature of the papers, May or June is the earliest indication for a decision.
“This case has huge ramifications. We would like to encourage the legal representatives and parties not to lose sight that this case has a long way to go. We encourage the parties to engage with each other as much as possible to see if there’s any aspect that can be resolved together.”