2 September 2020
On Monday 31 August, Judges Patrick Gamble and Monde Samela delivered their judgment in the Tafelberg case, setting aside the sale of the site of the former Tafelberg Remedial School in Sea Point by the Western Cape Provincial Government to the Phyllis Jowell Jewish Day School in November 2015 for R135 million. Since 2016, housing activists had been trying to get the sale set aside. The 200-page judgment will have implications for access to housing across the country.
In November 2015, the Western Cape Provincial Government sold the plot of land that had formerly housed the Tafelberg Remedial School to Phyllis Jowell Jewish Day School for R135 million. The land had previously been earmarked for affordable housing.
The first mention in the news of the sale of the site was on News24 on 26 January 2016. Nicole McCain, writing in the People’s Post, reported that the site had been earmarked for mixed-use residential development but subsequently “the property was declared surplus to government needs and sold”, according to a provincial public works department spokesperson.
First mention of any controversy regarding the Tafelberg sale was on a 8 February 2016, when it was reported that a trio of activist organisations, Ndifuna Ukwazi (NU), Equal Education (EE), and the Social Justice Coalition (SJC), had engaged the Province on plans to sell or lease four plots of Province-owned land in the inner city to private developers. One of the four plots that concerned these activist organisations was the Tafelberg site. The organisations called on the Province to halt the sales, and to use the land to develop social housing instead.
On 3 March 2016, members of NU’s newly-formed campaign called Reclaim the City (RTC), under the slogan ,“Land for People, Not for Profit”, marched to the Tafelberg site to protest against the sale of the land for private development. Mandisa Shandu, then an attorney at NU and currently NU’s Director, announced that the organisation would go to court to apply to interdict the sale of the Tafelberg site. That same day the Province announced it would engage with NU in a mediation process about the sale.
On 15 March, NU announced that it had rejected the Province’s attempts at mediation, owing to the Province’s insistence on confidentiality. This, said NU, went against the principle of open governance. NU’s head of research, Hopolang Selebalo, said that NU still planned to apply to interdict the sale.
On 11 April, NU launched on an interdict application to stop the transfer of the property to the new owners (pending a final court application), “and to compel the MEC for Transport and Public Works to provide written reasons within 30 days for the decision to sell the Tafelberg property” in the Western Cape High Court. The application included an affidavit from Malcolm McCarthy, the general manager of the National Association of Social Housing Organisations, who had proposed using the site for social housing to the Province in 2013.
On 13 April, NU announced a social audit of Sea Point. This audit would “collect personal testimony about housing in Sea Point, with a view to building solidarity among workers in the area, drawing attention to the shortage of affordable housing, and finding a solution.”
On 15 April, NU won its interdict application, placing a temporary halt on the sale of the Tafelberg land. NU announced that “lawyers for the Department of Transport and Public Works … would not challenge the interdict and would voluntarily halt the transfer of the property pending a review of the decision in court.”
On 18 April, GroundUp reported on a 2012 feasibility study by the Social Housing Regulatory Authority, which proposed that the Tafelberg site could be developed to accommodate “at least 200 homes, at rents of between R700 and R2,250 a month, with a community hall and shops.” This report ran contrary to the Province’s assertion that the Tafelberg site was not suitable for social housing.
By May 2016, the Tafelberg matter had ignited the public interest. On 5 May, lawyers for the Province and NU reached a negotiated settlement agreement that was made an order of court. According to this order, “Plans to sell the property will … be reopened to a 21-day public comment and objection period … the provincial cabinet will determine whether the sale should continue or not and must provide reasons if the sale continues.” This decision was to be made by the Provincial Cabinet in March 2017.
On 30 May, GroundUp published a letter by novelist Margie Orford. For Orford, “To sell off the Tafelberg land is to discard the opportunity to plan for a city that is built on integration, compassion, trust and justice … This is an opportunity to restore Cape Town’s heart and soul. To atone, to make peace with our history and to lay the foundation for a different kind of future.”
On 6 June, NU hosted a public meeting for Sea Point residents as part of the public comment process. Many present were unhappy at the Tafelberg sale. Elizabeth Gqoboka, who had lived in Sea Point for 22 years, working as a domestic worker and caregiver, said, “We want to have our own lives, live with our families and see our grandchildren grow up in front of us.” Meanwhile, a battle of petitions was taking place between those who supported the social housing plan, and those who wanted the site used for the Phyllis Jowell Jewish Day School.
On 8 June, GroundUp published an open letter from Dr Tolu Oni and Professor Leslie London. The doctors came out in favour of using Tafelberg for social housing, saying that such a plan could be a “transformative model to improve health outcomes and promote equity among residents and the neighbourhood.”
On 9 June, GroundUp published the submission of Zackie Achmat, co-founder of NU, addressed to then-Premier Helen Zille, in favour of using the Tafelberg site for social housing. Achmat called on Zille to stop the Tafelberg sale, and to “accept the moral consensus of the community.” Achmat said that support of the status quo would fuel a move from “resistance to rebellion in the struggle for urban land justice.”
GroundUp also published a letter from Samuel Seeff, Chairman of the Western Province Priorities and Planning Board, and Lance Katz, Vice Chairman of the Phyllis Jowell Jewish Day School. Seeff and Katz argued in favour of the sale, saying that the Tafelberg site was unsuitable for social housing, “not least due to the high land cost and the heritage aspects of the site”, and that the school was “intended for the benefit of the entire community”
On 9 June, a hundred-strong Reclaim the City contingent marched to the Tafelberg property to oppose the sale of the site. Elizabeth Gqoboka was reported making an impassioned plea for social housing at the site, “We are sick and tired to be squashed in the backyard living with the rats.” The march was held to mark the end of a 21-day public comment and objection period.
On 30 June, the City of Cape Town announced “the first affordable housing in the CBD since 1994”. The site at the Foreshore Freeway precinct would have units available to households with incomes between R3,500 and R15,000 a month; however, the City did not specify a minimum number of affordable units.
On 24 July, GroundUp revealed that despite the Province’s promises to use the proceeds of the Tafelberg sale for social projects, the money from the sale would instead “fund a shortfall on a new R540-million provincial office project in the city centre.”
On 6 September, Julian Sendin, then-researcher at NU, wrote an opinion article calling for social and affordable housing in the City. “Soon, there will be no land left to create the Cape Town our Constitution demands,” said Sendin.
On 14 September, GroundUp analysed the concepts of affordable and social housing as a concept, showing that under prevailing wage conditions, “most domestic workers would not qualify for possible future affordable housing in Tafelberg”.
On 15 November, NU and RTC activists held a sit-in at the offices of the Provincial Department of Transport and Public Works. They demanded a meeting with Thiagaraj Pillay, the Western Cape Government’s Chief Director of Public-Private Partnerships. The activists wanted to “discuss the publication of the affordable housing feasibility study for the former Tafelberg School site in Sea Point”, after the deadline to publish the study had expired on 11 November.
On 17 November, the Provincial Department of Public Works and Transport announced that it would publish its affordable housing feasibility study on the Tafelberg property in Sea Point the next day. About 20 activists from Reclaim the City and Ndifuna Ukwazi gathered outside the department’s building in Dorp Street.
On 18 November, the Tafelberg feasibility study was released. According to the study, the Tafelberg site could host 270 residential rental units for households earning under R7,500 a month. The study was celebrated by Ndifuna Ukwazi. Co-director of NU Jared Rossouw said, “[it] brings the province to the brink of an unprecedented decision: to begin dismantling apartheid spatial design in Cape Town.”
On 30 November, supporters of RTC marched against evictions in the Sea Point area. This was the beginning of RTC’s expansion of its vision beyond the Tafelberg case alone. One evictee, Sheila Madikane, said that the City had offered her a house in Delft, despite living in Sea Point for 35 years.
On 12 December 2016, the Western Cape Provincial Property Committee (PPC), which allowed the sale of the Tafelberg site, admitted in a report that it was functioning in contravention of provincial regulations. One external member of the PPC was quoted as saying that, “they attend the meetings purely as a rubber-stamping exercise.”
On 18 January GroundUp reported that Cape Town’s Jewish community had been warned off attending a public meeting on the Tafelberg sale, hosted by NU. In an email sent by Samuel Seeff and Lance Katz, members of Cape Town’s Jewish community were warned that “… any engagement on your part (even in a personal capacity and however well intentioned) may be detrimental to the community’s interest given the sensitive nature of this matter at this time”. In response, Doron Isaacs said, “They don’t want Jews to hear these stories, but rather to close ranks behind narrow self-interest. This kind of leadership hurts the Jewish community and hurts Cape Town as a whole.”
On 19 January, GroundUp published an opinion piece by Daneel Knoetze, at the time NU’s communications officer. Knoetze argued that then-Mayor of Cape Town Patricia De Lille’s promises to restructure the City’s administration to redress spatial apartheid rang hollow, as the City’s flagship inner city social housing project in Salt Circle had been in limbo for nine years. Knoetze pointed out that, “since 1994, not a single affordable housing unit has been built in or near the Cape Town city centre.”
On 20 January, NU hosted a public meeting at the Sea Point Methodist Church for a 200-strong crowd. Long-time working class residents of Sea Point spoke. Chair of the meeting Andrew Boraine, CEO of the Western Cape Economic Development Partnership, said that Tafelberg would be the beginning of affordable housing in the inner city, and a model for the future.
A 27 January opinion piece from Jared Rossouw, Co-director of NU, called for Western Cape Provincial Minister for Human Settlements Bonginkosi Madikizela to recuse himself in the Tafelberg matter. Rossouw argued that the minister’s defence of the sale was founded in poor reasoning, and urged that the land instead be used for social housing.
On 1 February, an opinion piece from Noah Schermbrucker, project manager for People’s Environmental Planning, described how, in cases like Tafelberg, the City’s rules and regulations worked against the interests of the poor and working classes.
March 2017 would be a crucial time in the Tafelberg matter. On 22 March, a meeting of the Western Cape Provincial Cabinet would decide whether the sale of the Tafelberg site would proceed.
On 13 March, hundreds of members of Cape Town’s Jewish community petitioned the Province for the halt of the sale of the Tafelberg site to the Phyllis Jowell Jewish Day School, and for the land to be used instead for social housing.
On 20 March, an opinion piece from Hopolang Selebalo, head of research at Ndifuna Ukwazi, and Emile Engel, the head of organising at Ndifuna Ukwazi, called on the provincial cabinet to reverse the sale of the land instead of continuing “the legacy of spatial apartheid”.
On 22 March 2017 the Western Cape Provincial Cabinet decided to proceed with the sale of the Tafelberg site to the Phyllis Jowell Jewish Day School. In response, RTC said in a statement that, the government had “laid bare their intention to capitalise from our public assets at all costs, in the face of considerable public opposition … They have shown a deep contempt for the principle of using public land to reverse apartheid spatial planning.”
Two days later, on 24 March, around 150 people gathered at another public meeting hosted by NU at the Sea Point Methodist Church. Activists for RTC declared that they “would not give up” their fight for the Tafelberg site.
On 27 March, GroundUp broke the news that the Helen Bowden Nurses Home in Sea Point and the Woodstock Hospital in Woodstock, both state-owned and long-abandoned, had been occupied by Reclaim the City activists. These occupations were a reaction to the Province’s decision to proceed with the sale of the Tafelberg site. The response from then-Premier Helen Zille was critical. Ntombi Sambu, one of the RTC activists occupying the hospital declared, “We’re claiming our space. We’re claiming our city. If the government is not going to do it for us, then we’re just going to do it ourselves.”
On 28 March 2017, the City of Cape Town announced its decision to declare the Sea Point area a restructuring zone. This meant that social housing developments in the area would be eligible for national housing subsidies. The absence of “restructuring zone” status had been one of the Province’s central reasons for rejecting the Tafelberg site for social housing development.
On 31 March, GroundUp reported from inside the occupation of the Helen Bowden Nurses Home. “The plan is to test the possibility of a long term occupation,” said Zimkita Booi, an RTC supporter and occupier. These occupations, which persist today, would take on a life of their own beyond the protest action against Tafelberg.
On 18 April 2017, tensions were revealed between the National Treasury and the Premier of the Western Cape, after the Treasury issued a statement of concern about the sale of the Tafelberg site in early April and called the Province’s plan to use the sale to fund a government building “inappropriate”. In response, the Premier’s office called on the Treasury not to let the social housing debate “be distorted for the benefit of political or other agendas going forward.”
On 8 May, NU and RTC launched their application to overturn the sale of the Tafelberg site in the Western Cape High Court. Thozama Adonisi, one of the applicants in the case, said in her affidavit that both the City and the province “have failed to comply with their constitutional and statutory obligations to redress the effects of spatial apartheid in central Cape Town”. It would be a year-and-a-half before the application was heard by the High Court.
On 18 May, in an open letter to Premier Zille, Sheila Madikane, a leader of RTC and Sea Point resident of 30 years, lambasted Zille’s insinuation in a Daily Maverick column that the campaign for Tafelberg was fuelled by hidden agendas, rather than a sincere expression of the need for social housing in the inner city after decades of inaction by government.
On 22 May, Premier Zille responded to Madikane. Zille said that Tafelberg “does not adequately meet the criteria necessary for sustainable affordability”, criticised the RTC occupations, but declared that “we regard the provision of more affordable housing on well-located land as a top priority for our government.”
On 25 July, Jewish Sea Point residents met activists from NU and RTC. At this meeting activists quelled local fears of anti-semitism in RTC and NU’s campaign to reverse the Tafelberg sale, saying that it was a “twist of fate” that the Tafelberg plot had been sold to a Jewish school.
On 26 July, the Province revealed a proposal to rezone the Somerset Hospital Precinct for businesses and housing, including some affordable housing units. Activists from NU decried the plans, saying that the allotment of 4% of the land for affordable housing was insufficient.
For 2018 and most of 2019, the Tafelberg matter was placed on the backburner as NU and RTC’s application to stop the sale worked its way through the courts.
Nevertheless, the Tafelberg case was one of the causes around which thousands rallied at a 21 March protest action in support of access to land and affordable housing, organised by the Social Justice Coalition (SJC), District 6 Working Committee, NU and RTC.
On 22 November 2019, GroundUp reported on a march organised by RTC to create awareness for the Tafelberg case, which was set to be heard on Monday 25 November to Thursday 28 November at the Western Cape High Court.
The first day of the Tafelberg case in the Western Cape High Court featured submissions for the applicants in the case, NU and RTC. The second day saw counsel for the provincial government defend the Tafelberg sale. On day three, the Province’s arguments continued and the City of Cape Town made its submissions. On the fourth day, counsel for the Phyllis Jowell Jewish Day School announced that if the sale was allowed to proceed, there would be 40 affordable housing units at the site.
Then, on 29 November, on the final day of the Tafelberg case, in his closing arguments for NU and RTC, Advocate Pete Hathorn said, “Cape Town still very much resembles the make-up of the city in the 1970s … The state needs to implement a reasonable housing program in central Cape Town.”
Judge Gamble closed proceedings, saying, “You’ve given us lots to think about, it’s going to take time …The normal time period [for a judgment] is about three-months, but that target is overtaken in this matter. Due to the nature of the papers, May or June is the earliest indication for a decision … This matter has huge ramifications.”
Covid-19 further extended the wait for judgment.
On Monday 31 August 2020 Judges Gamble and Samela handed down their ruling.