Constitutional Court Orders Cape Town to Fund Affordable Housing Strategy

Tafelberg School site in Sea Point has sat at the centre of a constitutional dispute for nearly a decade. Now, the Constitutional Court has delivered its verdict, compelling the Western Cape government and City of Cape Town to produce concrete strategies for delivering affordable and social housing in the inner city, and ordering the Province to cover the applicants’ legal costs across all court proceedings, including fees for two counsel at every level.

The ruling’s economic core is blunt. Justice Nonkosi Mhlantla, writing for a unanimous bench, rejected the argument that high market valuations and apartheid-era land scarcity excuse government inaction on housing obligations. Those conditions are legacies of apartheid, the court found, not justifications for perpetuating spatial exclusion. The Province and City cannot point to elevated property prices as a reason to avoid their constitutional duty.

The case began in 2015, when the Western Cape government declared the former Tafelberg School site surplus and sold it to a private school. Housing activists from Ndifuna Ukwazi and Reclaim the City challenged the disposal, arguing the property should have been retained for affordable housing in a location with direct access to employment, services, and amenities. The Socio-Economic Rights Institute of South Africa appeared as a friend of the court. The national Minister of Human Settlements also intervened, contending the provincial government had failed to consult the national department before disposing of state land, a breach of cooperative governance obligations the court ultimately upheld.

The sale was eventually cancelled and the Western Cape government has since committed to building affordable housing on the site. The court nonetheless proceeded to judgment, finding that the constitutional questions raised were too significant to leave unresolved on grounds of mootness.

What the court found in Cape Town’s inner city is a financing and delivery failure, not merely a policy gap. At the time of judgment, the City had implemented no social or affordable housing projects within the CBD. Several pipeline projects had been abandoned or stalled for more than a decade. “Paper plans do not amount to constitutional compliance,” Mhlantla wrote. The City’s defence, that a pipeline of projects demonstrated good faith, did not survive scrutiny.

Meanwhile, the spatial cost of this inaction is measurable. Thousands of workers travel daily from the city’s periphery to its centre in pre-dawn darkness, a direct consequence of exclusionary urban planning that has kept poor and working-class communities out of amenity-rich areas such as the CBD and Sea Point.

On budgetary constraints, the court was direct: the Province and City must take reasonable steps to overcome them, including actively seeking national government funding. Failure to pursue that funding avenue constitutes a breach of the obligation to progressively realise the right to adequate housing.

The judgment imposes specific reporting requirements with a hard deadline. Both the Western Cape government and the City must submit detailed reports to the Western Cape High Court within three months. Those reports must outline current policies and programmes for affordable housing in the CBD, list completed or under-construction projects with associated budgets, document any national funding requests, and detail intergovernmental coordination efforts.

The court also found that the public participation process surrounding the Tafelberg sale amounted to a tick-box exercise, with minimal genuine receptiveness to input. Regulations that permitted public participation only after a sale contract was concluded were declared unconstitutional, and the Province has twelve months to remedy that legislative defect.

The cost order against the Province is significant. Paying legal costs across the High Court, Supreme Court of Appeal, and Constitutional Court, including two counsel at each level, represents a material financial consequence for a government that argued it lacked the resources to retain prime inner-city land for affordable housing. Whether that cost, combined with the reporting obligations and the constitutional framework now on record, translates into funded projects on the ground is the question Cape Town’s housing market will answer over the next few years.