Court Orders Cape Town to Confront Decades of Housing Segregation

Every morning before dawn, thousands of people board buses, taxis and trains in Cape Town’s outer neighbourhoods to reach jobs in the city centre. Justice Nonkosi Mhlantla, writing for the Constitutional Court, described their commute as more than routine travel. It is, she wrote, “a living testament to the enduring legacy of spatial injustice” that divides the city along racial and class lines, pushing working-class communities far from the amenity-rich areas where employment and services concentrate.

This week, the apex court handed down a judgment that will reshape how government approaches affordable housing across South Africa. The ruling closes nearly a decade of litigation over a single parcel of land in Sea Point, but its implications extend far beyond that site. The Constitutional Court has ordered the Western Cape government and City of Cape Town to submit detailed plans within three months showing how they will reverse patterns of exclusion and build affordable housing in the inner city, where it is most needed and most scarce.

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

The case centred on the former Tafelberg School 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 site should have been used for social housing to serve the city’s poorest residents. The Socio-Economic Rights Institute of South Africa supported the case as a friend of the court. The Minister of Human Settlements also intervened, contending that the national department should have been consulted before the province disposed of state land.

The litigation wound through the courts for years, ultimately reaching the Constitutional Court in 2025. Although the case became technically moot after the province cancelled the sale and announced plans to build affordable housing on the site, the court agreed to hear the matter in the interests of justice. The fundamental question at stake transcended the Tafelberg site itself: how does a democratic society address the enduring legacy of spatial apartheid?

The City of Cape Town had argued it was fulfilling its obligations and had a pipeline of housing projects in development. The court found no evidence that these projects had materialised. Several had been abandoned or stalled for more than a decade. “Paper plans do not amount to constitutional compliance,” Justice Mhlantla stated. At the time of the court record, the City had implemented no social or affordable housing projects within the CBD.

The court rejected the government’s argument that high property prices and land scarcity, both legacies of apartheid, excused the failure to provide inner-city housing. These constraints do not absolve the province and city of their constitutional duties, the judgment found. While budgetary limitations exist, both entities must take reasonable steps to overcome them, including seeking national government funding.

By contrast, the ruling’s sharpest finding on process concerned how the province handled public participation when deciding to sell Tafelberg. The court found the process amounted to a “tick-box exercise” with minimal evidence that officials were genuinely receptive to community input. More broadly, the court declared unconstitutional the regulations under the Western Cape Land Administration that allowed public participation only after a sale contract was already concluded. The province has 12 months to fix this legislative defect.

The court also found that the provincial government violated cooperative governance principles by failing to inform and consult the national Minister of Human Settlements before disposing of the Tafelberg site.

The three-month reporting requirement now places both the City and the Western Cape government on notice. They must detail their current policies, projects and programmes for affordable housing in the CBD, list completed projects and those under construction, account for budgetary resources spent and any requests for national funding, and describe intergovernmental coordination efforts. The High Court retains authority to enrol the matter again if necessary. The province was ordered to pay the applicants’ legal costs across all three levels of court proceedings.

For more details on this judgment and the case timeline, see groundup.org.za/article/huge-victory-in-legal-fight-for-affordable-housing-in-cape-town/

The ruling affirms that location is not peripheral to housing policy but integral to whether government is meeting its constitutional obligations. The daily commutes of thousands of workers across a fractured city will remain the clearest measure of whether this judgment translates into real change, or joins the long list of paper plans that never did.