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[2020] ZAWCHC 87
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Adonisi and Others v Minister for Transport and Public Works Western Cape and Others; Minister of Human Settlements and Others v Premier of the Western Cape Province and Others (7908/2017; 12327/2017) [2020] ZAWCHC 87; [2021] 4 All SA 69 (WCC) (31 August 2020)

IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO: 7908/2017
In
the matter between:
THOZAMA
ANGELA
ADONISI
First Applicant
PHUMZA
NTUTELA
Second Applicant
SHARONE
DANIELS
Third Applicant
SELINA
LA
HANE
Fourth Applicant
RECLAIM
THE
CITY
Fifth Applicant
TRUSTEES
OF THE NDIFUNA UKWAZI TRUST
Sixth Applicant
And
MINISTER
FOR TRANSPORT AND PUBLIC WORKS:
WESTERN
CAPE
First Respondent
PREMIER
OF THE WESTERN CAPE PROVINCE
Second Respondent
THE
PHYLLIS JOWELL JEWISH DAY SCHOOL (NPC)
Third Respondent
CITY
OF CAPE
TOWN
Fourth Respondent
MINISTER
OF HUMAN
SETTLEMENTS
Fifth Respondent
THE
PROVINCIAL GOVERNMENT OF THE
WESTERN
CAPE
Sixth Respondent
THE
MINISTER OF PUBLIC
WORKS
Seventh Respondent
THE
MINISTER OF HUMAN SETTLEMENTS:
WESTERN
CAPE
Eighth Respondent
SOCIAL
HOUSING REGULATORY AUTHORITY
Ninth Respondent
MINISTER
OF RURAL DEVELOPMENT
&
LAND
REFORM
Tenth Respondent
MINISTER
OF
FINANCE
Eleventh Respondent
GARY
FISHER
Twelfth Respondent
AND
IN

CASE NO.12327/2017
In
the matter between:
MINISTER
OF HUMAN
SETTLEMENTS
First Applicant
NATIONAL
DEPARTMENT OF HUMAN SETTLEMENTS
Second Applicant
SOCIAL
HOUSING REGULATORY AUTHORITY
Third Applicant
and
PREMIER
OF THE WESTERN CAPE PROVINCE
First Respondent
MEC
FOR TRANSPORT AND PUBLIC WORKS:
WESTERN
CAPE
PROVINCE
Second Respondent
MEC
FOR HUMAN SETTLEMENTS:
WESTERN
CAPE
PROVINCE
Third Respondent
CITY
OF CAPE
TOWN
Fourth Respondent
THE
PHYLLIS JOWELL JEWISH DAY SCHOOL (NPC)
Fifth Respondent
TRUSTEES
OF THE NDIFUNA UKWAZI TRUST
Sixth Respondent
Coram:
P.A.L. Gamble and M.I. Samela, JJ.
Date
of Hearing: 25, 26, 27, 28 & 29 November 2019.
Date
of Judgment: 31 August 2020.
JUDGMENT DELIVERED ON
31 AUGUST 2020
GAMBLE,
J:
INTRODUCTION
[1]
In the heart of the Cape Town suburb of Sea Point stands a derelict
school building now colloquially known as “the Tafelberg
site”.
Tafelberg was the name of a remedial school which the building
housed until 2010, when it was relocated to purpose-built
premises in
the Northern Suburbs.  This case concerns the future use of the
Tafelberg site.  For the sake of convenience
I shall refer
interchangeably to the school premises as “the property”
and/or “the Tafelberg site”, or
simply as “Tafelberg”.
HISTORICAL
BACKGROUND TO THE PROPERTY
[2]
In 1899 the Colonial Government established the Ellerslie Girls High
School on the property.  The double story building
conforms to
the architectural style of the late Victorian era, and comprises a
stone facade with decorative gabling.  There
is an historic
garden and a tree-lined avenue on the property which, together with
the original Victorian building, enjoys heritage
protection status.
The property measures 1,7054 ha in extent and consists of 2
separate erven, no’s 1424 and 1675,
Sea Point.  It fronts
onto Main Road, Sea Point (its street address is 355 Main Road) and
is bounded along its periphery by
various suburban street –
Milner, Herbert and Heathfield Roads and The Glen.
[3]
Over the years the L-shaped property
was expanded, as additional classrooms and the like were added, and
at some stage a small block
of flats, Wynyard Mansions, was built on
the south eastern corner of the property, abutting on to Herbert
Road.
[1]
Occupation of these flats, which
was rent-controlled, was managed by the Department of Public Works.
The property also has
a large swimming pool, playgrounds and
tennis and netball courts on it.
[4]
In 1989 the Western Cape Provincial Department of Education merged
Ellerslie Girls’ School with Sea Point Boys’
High School
to form Sea Point High, and the erstwhile premises of the boys’
school (a short distance further along Main Road)
were utilised to
accommodate the new co-educational place of learning.  The
property was then used to house the Tafelberg
Remedial School for
scholars with learning difficulties, most of whom were bussed to the
school from their homes elsewhere.  The
remedial school was
closed in June 2010, when the scholars were relocated to the school
in Bothasig referred to earlier.  Since
then Tafelberg has
effectively been mothballed: the property has been secured with
barbed wire and hoarding where practicable,
and it has remained
unused for the past 10 years.
[5]
The erven on which the school and Wynyard Mansions are situated are
registered to the Provincial Government of the Western Cape
(“the
Province”), which commenced steps in August 2010 to determine
the most suitable way to utilise the derelict property.
The
tenants of Wynyard Mansions were given notice and, after a disposal
process which endured for more than five years, the
property was
eventually sold by the Province to the Phyllis Jowell Jewish Day
School (NPC) (“the Day School”), in January
2016, for
R135m.  That sale has been challenged on two fronts in separate
applications before this Court, which were consolidated
for the
purposes of the hearing before us.
THE
RTC APPLICATION – CASE NO.7908/17
[6]
The first application for, inter alia, the review of the sale of the
Tafelberg site, was launched on 5 May 2017, under case
no. 7908/17,
by Ms. Thozama Angela Adonisi (as the first applicant) and five
others, citing the Minister for Transport and Public
Works: Western
Cape (“the MEC”) as the first respondent together with
eleven other respondents whose identities will
emerge as this
judgment unfolds.  Included in that number are the Day School
(as third respondent), the City of Cape Town
(“the City”
-
as fourth respondent), the Minister of Human Settlements (“the
National Minister” – as fifth respondent) and the
Social
Housing Regulatory Authority (“the SHRA” – as ninth
respondent).
[7]
Ms. Adonisi, who deposed to the founding affidavit, works as a nurse
at the Christian Barnard Memorial Hospital in Cape Town,
and resides
in the basement of a block of flats in Sea Point.  She is a
member of the leadership committee of the Sea Point
Chapter of
“Reclaim the City” (“RTC” – the fifth
applicant), which is described in the founding affidavit
as follows:
‘
It
is a voluntary social movement that is made up of Cape Town working
class residents (including domestic workers, waitrons, call-centre

workers, carers and security guards), learners, university students
and professionals who seek to promote and protect the right
to land
and housing for all residents in Cape Town. Reclaim the City consists
of over 200 supporters in its Sea Point Chapter and
has approximately
3000 supporters across Cape Town. The social movement was launched at
a public community meeting held in Cape
Town on 13 February 2016 as a
direct response to the sale, by the Province, of State land in Cape
Town to private sector investors…’
[8]
The second applicant in the RTC application is Ms. Phumza Ntutela, a
resident of the Cape Town suburb of Nyanga, which is located
on the
Cape Flats about 25km from Sea Point.  In the founding affidavit
Ms. Ntutela’s personal circumstances are described
as follows:
‘
She
is a parent of two daughters, one of whom is a learner at Sea Point
High School.  She has been a Sea Point resident since
1981.  She
and her children have lived in ‘maids’ quarters’ in
the basement of various apartment buildings
in and around Sea Point.
Today, she, her daughter and her grandson live in Nyanga, as a
direct result of being forced out
of Sea Point because of the
inability to afford accommodation in the area following her early
retirement in 2005, as a result of
chronic arthritis, from her
employment as a secretary.’
[9]
The third applicant, Sharone Daniels, lives in Ocean View in the
southern Peninsula, having been forcibly removed there from
Simon’s
Town.  Although Ms. Daniels works in the city, she has no
obvious residential connection with Sea Point.  The
fourth
applicant is Ms. Selina La Hane, a 71-year-old adult female who
resides in Sandrift, Milnerton, which is approximately 15km
distant
from Sea Point.  Ms. La Hane’s personal circumstances are
described thus in the founding affidavit:
‘
She
is the guardian of her grandson aged 15 and a great granddaughter
aged 10, who attend Cape Town High School
[2]
and Prestwich Primary School,
[3]
respectively.  She has been a Sea Point resident since 1974.
She had previously lived in Wynyard Mansions,
provincially-owned
rental units located on a portion of the Tafelberg
Property (erf 1424) and had lived there since 1995 with other
predominantly
working-class tenants.  Today, she lives in
Sandrift after being relocated and displaced by the Western Cape
Department of
Human Settlements…’
[10]
In the RTC application the MEC is
cited as the first respondent, because he is the official responsible
for the disposal of immovable
assets owned by the Province, which
includes the Tafelberg site.  The MEC exercises those functions
under the Western Cape
Land Administration Act, 6 of 1998 (“the
WCLAA”)
[4]
and the Government Immovable Asset
Management Act, 19 of 2007 (“GIAMA”)
[5]
and, in terms of s4 thereof, was
designated by the Premier of the Province (“the Premier”)
as the custodian of immovable
assets registered in the name of the
Province.
[11]
The Premier was joined as the second respondent in the RTC
application in her capacity, acting together with the other members

of the Provincial Cabinet, as the official responsible for the
disposal of the Tafelberg site in terms of s3 of WCLAA.
[12]
The City was joined as the fourth respondent in the RTC application
on the following basis, according to the founding affidavit:
‘
The
City is cited by virtue of the fact that the Tafelberg Property, and
further similarly situated properties forming part of the
Cape Town
Central City Regeneration Programme fall within its jurisdiction and
that the City, with the concurrence of the provincial
government,
identifies restructuring zones for purposes of social housing
designated by the National Minister of Human Settlements
in terms of
the Social Housing Act, 16 of 2008 (“
Social Housing Act&rdquo
;)
[6]
.
. . (T)he applicants contend that the City and the province have
failed to comply with its (sic) constitutional and statutory

obligations to redress spatial apartheid in central Cape Town.’
[13]
The National Minister was cited in light of her constitutional and
statutory responsibilities in respect of the provision and

administration of housing delivery arising from,
inter alia
,
the Constitution of the Republic of South Africa,1996 (“the
Constitution”), the Housing Act, 107 of 1997 (“the
Housing Act&rdquo
;) and the SHA.
[14]
The Minister of Public Works in the National Government was cited as
the seventh respondent in the RTC application, as the
custodian of
immovable assets in the national sphere of government under GIAMA.
[15]
The SHRA was cited as the ninth respondent in the RTC application in
that, having been established in terms of Chapter 3 of
the SHA, it is
the custodian of social housing (as defined in the SHA) in the
Republic.
[16]
Equal Education, a non-governmental organization (“NGO”)
with a focus on educational issues, applied to be, and
was duly
joined as, an
amicus curiae
in the RTC application.
[17]
I shall revert later to the relief sought in the RTC application, but
it bears mention at this juncture that there is no issue
regarding
the
locus standi
of any of the applicants in that application.
THE
NATIONAL MINISTER’S APPLICATION – CASE NO.12327/17
[18]
On 11 July 2017 the National Minister effectively joined the
litigation, by issuing her own application for declaratory and
other
relief.  She joined the National Department of Human Settlements
(“the DHS” – as second applicant)
and the SHRA as
the third applicant.  Included amongst the respondents in the
National Minister’s application were the
Premier (as first
respondent), the MEC (as second respondent), the City (as fourth
respondent) and the Day School (as fifth respondent).
THE
LEGAL TEAMS
[19]
RTC was represented by Mr. P. Hathorn
SC and Ms. C. de Villiers, instructed by Ndifuna Ukwazi Law Centre
(“Ndifuna”)
of Cape Town.  Ndifuna
[7]
is a public interest law firm active
in social issues in Cape Town and is controlled by the Ndifuna Ukwazi
Trust, whose trustees
were joined in the RTC application as the sixth
applicant and were joined by the National Minister in her application
as the sixth
respondent.
[20]
The National Minister was represented by Mr. I. Jamie SC, Mr. T.
Masuku SC and Ms. L. Stansfield, instructed by the State Attorney,

Pretoria.
[21]
The SHRA was represented by Ms. E. Webber, instructed by M F Jassat
Dhlamini, attorneys of Johannesburg, while Equal Education
was
represented by Ms. J. Bleazard and Mr. U. Naidoo, on the instructions
of the Equal Education Law Centre in Cape Town.
[22]
The Premier, the MEC, the Provincial Government (the sixth respondent
in the RTC application), the Minister of Human Settlements:
Western
Cape (the eighth respondent in the RTC application and the third
respondent in the National Minister’s application
and
hereinafter referred to as “MHS: WC”) were represented by
Mr. E. Fagan SC, Ms. K. Pillay SC, Ms. A. du Toit and
Ms. M.
Mokhoetsi, on the instructions of the State Attorney, Cape Town.
[23]
The City was represented by Ms. N. Bawa SC and Mr. T. Mayosi,
instructed by Riley Incorporated Attorneys, while the Day School
was
represented by Mr. P. Farlam SC, Mr. B. Joseph SC and Mr. G. Quixley,
on the instructions of Edward Nathan Sonnenberg Attorneys
of Cape
Town.
[24]
The combined applications ran into more than 8000 pages and were
contained in more than 30 lever arch files.  The papers
were
meticulously collated and presented by the various attorneys, for
which we express our gratitude.  For the sake of convenience
the
parties agreed to compile a core bundle of the most relevant
documents, and these were utilised during the 5 days over which
the
matter ran.
[25]
Counsel all submitted detailed heads of argument, which have greatly
assisted in the preparation of this judgment.  At
our request,
counsel prepared (and adhered to) a timetable to facilitate the
presentation of their arguments, and we would like
to commend all
counsel for the quality of their oral arguments in what rightly is to
be described as a marathon matter of great
significance to all the
parties concerned.
THE
RELIEF SOUGHT IN THE RTC APPLICATION
[26]
The RTC application contemplates relief on a range of issues at
various levels, from the infringement of constitutional rights
and
obligations to a direct attack on the sale of the Tafelberg site to
the Day School.  At the core of the constitutional
attack, is
the legacy of segregated living areas imposed on the people of our
country by a plethora of legislation passed under
the apartheid
government.  The parties referred in this regard to the
persistence (after more than 25 years of democracy)
of “spatial
apartheid” in central Cape Town and I shall do likewise.
[27]
The relief originally sought in the notice of motion was amended
(only in minor respects and without objection) at the conclusion
of
argument, and in terms of a draft order ultimately presented to the
Court by Mr. Hathorn SC the following relief is sought by
RTC:
‘
1.
It is declared that the first, second, fourth, sixth and eighth
respondents have failed to comply with their obligations, in
terms of
sections 25(5), 26(1) and 26(2) of the Constitution
[8]
,
and the legislation enacted to give effect to these rights, to
redress spatial apartheid in central Cape Town (the boundaries
of
which are depicted on the map annexed hereto marked “A”).
[See
PDF for annexure.]
2.
The first, second, fourth, sixth and eighth respondents are directed
to comply with their constitutional and statutory obligations
as
declared by this court in the preceding paragraph 2 (sic).
3.
The first, second, fourth, sixth and eighth respondents are directed
to file reports under oath, within three months, stating
what steps
they have taken to comply with their constitutional and statutory
obligations as declared by this Court, what future
steps they will
take in that regard and when such future steps will be taken.
4.
The applicants are granted leave to file an affidavit or affidavits
responding to the reports referred to in the preceding paragraph,

within one month of them having been served on their attorneys of
record.
5.
Furnishing directions with regard to the further conduct of the
matter pursuant to the filing of the reports and affidavits referred

to in the preceding paragraphs.
6.
Reviewing and setting aside the designation by the provincial
government in June 2010 of Erf 1675, an unregistered portion of
Erf
1424 Sea Point, and remainder of Erf 1424 Sea Point (collectively,
‘the Tafelberg Properties’) as ‘
surplus
’
in terms of the
Government Immovable Asset Management Act, 19 of
2007
.
7.
Reviewing and setting aside the decisions of the Western Cape
Education Department and the Western Cape Department of Human
Settlements respectively to surrender the Tafelberg Properties to the
Western Cape Department of Transport and Public Works in 2010.
8.
Reviewing and setting aside the decision of the Western Cape
Department of Transport and Public works in March 2015 to dispose
of
the Tafelberg Properties in (sic) the open market.
9.
Reviewing and setting aside the decision of the Western Cape
Department of Human Settlements as reflected in its letter dated
17
August 2015 to the Western Cape Department of Transport and Public
Works to withdraw its proposal to use the Tafelberg properties.
10.
The November 2015 decision of the Premier of the Western Cape
Province, acting together with the other members of the Provincial

Cabinet, to sell the Tafelberg Properties to the third respondent,
‘together with the deed of sale in respect of the Tafelberg

Properties… entered into between the Third and Sixth
Respondents’, is reviewed and set aside.
11.
The 22 March 2017 decision of the Premier of the Western Cape
Province, acting together with the other members of the Provincial

Cabinet, not to resile from the contract of sale concluded with the
Third Respondent is reviewed and set aside.
12.
The Premier of the Western Cape Province, acting together with the
other members of the Provincial Cabinet, is directed to take
into
account, and have due regard to, the legal obligation to provide, and
the need for, affordable social housing in central Cape
Town, and the
suitability of the Tafelberg Properties for social housing, in any
decision in respect of the use or disposal of
the Tafelberg
Properties.
13.
The Premier of the Western Cape Province, acting together with the
other members of the Provincial Cabinet (or a delegate),
is directed
to consult with the National Department of Human Settlements, the
Provincial Department of Human Settlements, the City
of Cape Town and
the Social Housing Regulatory Authority before taking any decision in
respect of the use or disposal of the Tafelberg
Properties.
14.
It is declared that Sea Point falls within the restructuring zone
‘CBD and surrounds (Salt River, Woodstock and Observatory)’

in sub-regulation 6.1 of the Provisional Restructuring Regulations
Published under General Notice 848 in Government Gazette 34788
of 2
December 2011 (‘sub-regulation 6.1’).
15.
It is declared that Regulation 4(6), and the proviso in Regulation
4(1), of the Regulations made under the Western Cape Land

Administration Act, 6 of 1998 by provincial notice number 595
published in Provincial Gazette number 5296 of 16 October 1998 are

unconstitutional and invalid.
16.
It is declared that the disposal of the Tafelberg Properties in
accordance with Regulation 4(6), and the proviso in Regulation
4(1),
of the Regulations made under the Western Cape Land Administration
Act, 6 of 1998 by provincial notice number 595 published
in
Provincial Gazette number 5296 on 16 October 1998 is unlawful.
17.
In so far as may be necessary, the period of 180 days contemplated in
section 7(1) of the Promotion of Administrative Justice
Act, 3 of
2000 (‘PAJA’) is extended to the date on which the review
proceedings under the above case number were instituted.
18.
Alternatively, and in any event, insofar as may be necessary, the
institution of the proceedings for review on 5 June 2017 is
condoned.
19.
Those respondents who opposed the application are ordered to pay the
Applicants’ costs of suit, including the costs of
two counsel.’
THE
RELIEF SOUGHT IN THE NATIONAL MINISTER’S APPLICATION
[28]
The National Minister’s case is
founded, firstly, on Chapter 3 of the Constitution and the
legislation promulgated pursuant
thereto,
viz.
the provisions of the
Intergovernmental Relations Framework Act, 13 of 2005 (“IGRFA”)
[9]
.
The National Minister similarly attacks the validity of the
WCLAA Regulations, and further relies on non-compliance by the

Province with GIAMA, in calling for the review and setting aside of
the sale of the Tafelberg property to the Day School.  On
that
basis the National Minister asks for an order in terms of a revised
draft handed up to Court at the conclusion of the hearing
herein, as
follows:
‘
1.
Declaring that the Western Cape Provincial Government’s
(‘WCPG’) failure to inform the National Government,

represented by the First and Second Applicants, of its intention to
dispose of Erf 1675, an unregistered portion of Erf 1424 Sea
Point,
and the remainder of Erf 1424 Sea Point (collectively “the
Tafelberg Property”), and prior to doing so, to consult
and
engage with it in this regard, constitutes a contravention of the
WCPG’s obligations in terms of Chapter 3 of the Constitution

and the Intergovernmental Relations Framework Act, 13 of 2005
(“IGRFA”).
2.
Declaring that there is an intergovernmental dispute between
the National, Provincial and Local spheres of government within the

meaning of section 1 of IGRFA relating to the sale or intended sale,
as the case may be, of the Tafelberg Property by the WCPG
to the
Fifth Respondent.
3.
Directing the First Second and Third Respondents to engage
the First and Second Applicants and the Fourth Respondent in an
intergovernmental
dispute resolution process as envisaged by Chapter
3 of the Constitution and regulated by IGRFA.
4.
Declaring the WCPG’s failure to publish in IsiXhosa the notice
dated 15 May 2015 calling for offers for the purchase of
the
Tafelberg Property to be in contravention of the provisions of
section 5(1) of the Western Cape Constitution and section 3(2)
of the
Western Cape Land Administration Act No 6 of 1998 (“WCLAA”).
5.
Reviewing and setting aside the publication on or about 15 May 2015
of the notice, published in Afrikaans and English, calling
for offers
for the purchase of the Tafelberg Property.
6.
Declaring the decision of WCPG, alternatively the Provincial Cabinet,
in or about November 2015 to dispose of the Tafelberg Property

through a deed of sale entered into with the Fifth Respondent to be
unlawful and invalid.
7.
Reviewing and setting aside the Provincial Cabinet’s decision
on 22 March 2017 not to resile from the contract of sale
concluded
between the WCPG, alternatively the Provincial Cabinet, and the Fifth
Respondent in respect of the Tafelberg Property
on the basis that the
decision is inconsistent with the provisions of sections 5(1)(a) and
(f), read with sections 3(c) and (d),
of GIAMA, and thus unlawful.
8.
Declaring the deed of sale between the WCPG, alternatively the
Provincial Cabinet, and the Fifth Respondent in respect of the

Tafelberg Property to be void
ab initio
and of no force or
effect, alternatively voidable and setting same aside.
9.
Declaring the provisions of Regulation 4(1) and (6) of the Land
Administration Regulations, made under section 10 of the WCLAA,
to be
ultra vires
the WCLAA and therefore invalid.
10.
Directing the First, Second and Third Respondents to pay the
Applicants’ costs, including the costs of three counsel.’
[29]
During argument Mr. Jamie SC indicated that the Province no longer
sought the relief in prayers 2 and 3 of the draft.  As
to prayer
4, after Mr. Masuku SC had addressed the Court in relation to the
invalidity of the notice due the failure to publish
it in isiXhosa,
the Day School’s attorney diligently conducted a late night
internet search and established that the notice
had indeed been so
published.  This was confirmed in a short affidavit handed up,
without objection, on the last day of the
hearing and so the relief
sought in prayer 4 was also abandoned by the National Minister.
[30]
I shall return to discuss the National Minister’s application
in greater detail later in this judgment.  Suffice
it to say at
this stage that the basis for the IGRFA relief is that the Province
is alleged to have failed to consult or inform
the DHS of its
intentions regarding the disposal of the Tafelberg site, and that it
failed to coordinate its actions with those
of the national
government or its agencies, including the SHRA, or to take into
account their material interests in the property
and its disposal.
The Province admits the failure to consult, claiming that there
was no legal obligation on it to do so.
In relation to the
review points, the Province argues that the impugned decisions are
not administrative action and are therefore
not susceptible to review
at law.  Further, the Province argues that any review
application is time-barred.
[31]
But first it is necessary to go into the background to the two
applications, and the approach required in law to address them.
In
so doing, I have relied extensively on the heads of argument filed on
behalf of the applicants, which sketch a factual
matrix and
historical background that is largely not in dispute.  Further,
I did not understand counsel for the Province or
the Day School to
take issue with the approach mandated under the Constitution to the
assertion by RTC of its members’ socio-economic
rights, or of
the interpretation and application of the land and housing rights
protected under the Constitution.
THE
FACTUAL AND LEGAL CONTEXT UNDERPINNING THE RTC APPLICATION.
[32]
RTC forcefully asserts a stark reality that stares every Capetonian
in the face on a daily basis.  Despite the beauty
of the edifice
that stands guard over the city, Table Mountain, and its spine that
stretches all the way to Cape Point at the southern
tip of the
Peninsula, and notwithstanding its forests, beaches and world class
facilities which make it one of the world’s
most sought after
tourist destinations, Cape Town remains one of the most spatially
divided cities in South Africa.
[33]
As pointed out by Dr. Lorna
Odendaal
[10]
,
one of the expert witnesses who deposed to an affidavit on behalf of
RTC, spatial segregation and socio-economic exclusion remain
barriers
to equality and justice in our city.  She describes how the
city’s sprawling landscape manifests as segregated
residential
settlement patterns, along racial and class lines, which produce an
urban form characterised by densely populated locations
where, on the
one hand, African
[11]
and Coloured people live, usually in
informal settings with limited or no access to employment
opportunities, social amenities or
public services, and on the other
hand, central or well-located residential areas that offer the above,
but which are significantly
less densely inhabited and typically
dominated by White people.  This phenomenon is described as
“inverse densification”.
[34]
One of the most pronounced consequences of such inverse densification
is that working class residents and the poor are unable
to afford
accommodation in the inner city or the surrounding central areas.
Consequently, poorer residents of the city have
to spend high
percentages of their income on travelling costs to reach their places
of employment, or to enjoy the city’s
many public and private
amenities.
[35]
A useful discussion of the effects of
spatial apartheid in relation to the Cape Peninsula is to be found in
the affidavit of Prof.
Susan Parnell
[12]
,
a further expert witness on behalf of RTC:
‘
While
apartheid urban planning affected all South African cities, it was
particularly effective in Cape Town, because of the city’s

unique typographical layout and racial demographics.  Mountains,
oceans and other natural features serve as unwitting allies
in
controlling movement and land use, and the Western Cape’s
status in the apartheid era as a ‘Coloured labour preference

area’ led to a unique three-way segregation between Coloureds,
Blacks and Whites.
Cape
Town today exhibits an inverse densification.  A largely poor
and working class Coloured and Black majority live on the
urban
periphery, in very densely populated settlements, far from jobs, and
with poor access to amenities and services.  Well-located

central areas are dominated by middle class and affluent,
predominantly White, households.  These areas are characterized

by relatively low densities, and an acute shortage of affordable
housing options despite excellent access to amenities, services
and
employment opportunities.  This dislocation results in an
unjust, inefficient and ultimately unsustainable segregated
urban
environment.
Cape
Town’s economic centre is the central city, but it remains
vastly less densified and diverse than it was fifty years
ago.  Over
the past two decades government has failed to remedy this, by not
meaningfully integrating Black and Coloured working
class people into
the central city.  The rising costs of market-rate housing
(rented or owned), and government failures to
meaningfully encourage
social and affordable housing in well-located areas (through
radically up-scaled public provision or private
regulation), have
increasingly pushed poor, working and middle class families further
away from economic and social centres.  This
sustains and
advances the racial and class divides of apartheid.
Spatial
segregation and associated patterns of sprawl impose a number of
costs on the household, society, and the state, which become

increasingly difficult to reverse over time.
Neighbourhoods
of concentrated low income households experience disproportionate
levels of crime, poor educational outcomes, higher
incarceration
levels, and low levels of public health.  Despite greater need
for government intervention in these areas, access
to services and
amenities tend to be significantly worse than in more affluent or
mixed-income neighbourhoods.
The
long-term financial costs imposed on the state through the creation
of poverty traps in dislocated low income neighbourhoods
tend to be
ignored when urban planning decisions are made.  Too often, the
focus remains on expediency, short-term gains and
cost savings.
Government’s
constitutional duty to progressively realise the right to physical
housing structures cannot be divorced from
its responsibility to
advance spatial justice.  Progressively addressing historic and
ongoing spatial injustice requires effective,
co-ordinated and
integrated broad-based social and affordable housing programmes, land
use regulations, and spatial development
strategies.’
[36]
RTC advances its case against this socio-economic and socio-political
background.  Relying on the provisions of the Constitution

referred to in its notice of motion, RTC says that there is a
positive obligation on the Province and the City to take reasonable

legislative and other measures to foster conditions which will enable
citizens of the Peninsula to gain access to land on an equitable

basis, all of this subject to available resources.  It refers
specifically to the
Housing Act, the
SHA and the Spatial Planning and
Land Use Management Act, 16 of 2013 (“SPLUMA”), as
important legislative instruments
in the mandated obligation on the
part of the Province and the City to urgently address the spatial
inequality referred to.
[37]
RTC links its application to the Tafelberg site because it says the
availability of this state-owned land presented the authorities
with
a fairly unique opportunity to promote housing under the SHA, rather
than to dispose of the property to an entity for private
development
at, what by all accounts is, a sum of money well above the market
value of the land.  It must be stressed, therefore,
that RTC’s
application is fundamentally based on the obligation to provide
social housing in central Cape Town and its surrounds.
[38]
It is not RTC’s case that the
property should have been made available for the provision of
accommodation under the government’s
more generalised housing
plan, referred to in common parlance as “RDP Housing”.
This refers to a scheme in terms
whereof compact houses that
have been built by the government are given to low income families,
who earn a combined income of less
than R3500 per month per
household.  Importantly, RDP houses are owned (and not rented)
by the beneficiaries and there are
strict conditions relating to
occupation and leasing.  The DHS no longer refers to the RDP
housing plan as such, but has updated
the plan and now calls it
“Breaking New Ground” or “BNG”
[13]
.
I shall, however, maintain use of the acronym RDP for reasons
which will become apparent later.
UNDERSTANDING
SOCIAL HOUSING
[39]
With the promulgation of the SHA in 2009 a new category of subsidised
housing was effectively created.  As the definition
in s1 of the
SHA demonstrates:
‘“
social
housing
”
means
a rental or co-operative housing option for low to medium income
households at a level of scale and built form which requires

institutionalised management and which is provided by social housing
institutions or other delivery agents in approved projects
in
designated restructuring zones with the benefit of public funding as
contemplated in this Act; . . .’
[40]
Section 2 of the SHA contains a multitude of general principles
applicable to social housing.  I shall refer to certain
specific
principles later, but for the present they may be conveniently
summarised as follows.  The aim of the SHA is to promote
access
to socio-economic resources in urban areas and assist with
restructuring cities to ensure greater social, economic and racial

integration with more compact residential areas.  To this end,
priority must be given to the needs of low and medium income

households in respect of social housing development, and the SHA
expressly requires that all three spheres of government promote,

amongst other aspects, the social, physical, and economic integration
of housing development into existing urban and inner city
areas
through the creation of quality living environments.
[41]
To this end, and as will appear later from the approach to litigation
of this nature, housing programmes implemented under
the SHA must
ensure that they are responsive to local housing demands and special
priority must be given to the needs of women,
children, child-headed
households, persons with disabilities and the elderly.  Further,
they must support the economic development
of low to medium income
communities by providing housing close to jobs, markets and transport
and by stimulating job opportunities
to emerging entrepreneurs in the
housing services and construction industries.
[42]
The expert evidence adduced on behalf of RTC stresses the importance
of access to well-located land to redress spatial injustice,
whether
through social housing under the SHA or otherwise.  The experts
contend that the availability of appropriately priced
state-owned
land is an essential requirement for addressing spatial exclusion and
advancing spatial justice in central Cape Town.
In the view of
Dr. Odendaal, in particular, the single greatest contemporary driver
of spatial injustice in the city is the
price of well-located land
and housing.  Suitable land for social housing (and other forms
of more affordable housing) is
extremely scarce in the central city
area and will only become more so in the future.  This view is
shared by the City and
is not disputed by the Province.
[43]
Architecturally, a social housing programme usually comprises a set
of residential units, similar to a block of flats or a
collection of
townhouses, which are erected and managed by a recognised “social
housing institution” which is defined
in s1 of the SHA as ‘an
institution accredited or provisionally accredited under this Act
which carries or intends to carry
on the business of providing rental
or co-operative housing options for low to medium income households
(excluding immediate individual
ownership and a contract as defined
under the Alienation of Land Act, 1981 (Act No. 68 of 1981), on an
affordable basis, ensuring
quality and maximum benefits for
residents, and managing its housing stock over the long term
. .
.
’
[44]
Two criteria immediately stand out in this definition.  Firstly,
there can be no private ownership in a social housing
scheme (as
there is in RDP housing), and secondly, there are fixed levels of
income which prospective lessees must meet, with such
income
categories being fixed by the National Minister from time to time.
At the hearing of this matter the Court was informed
that in
order to qualify for a social housing lease a tenant had to fall
within the income band of R5000 to R15 000 per month.
[45]
There are already a number of social
housing schemes operating in the Cape Peninsula.  One such
scheme, by way of example,
is Communicare,
[14]
which owns and manages some 3375
rental units.  These range from areas such as Mitchells Plain,
where a bachelor flat in the
Montclair Place complex costs R800 per
month, to Brooklyn, where a bachelor flat in the Drommedaris complex
is leased out for R4100
per month.  Those complexes were built,
and are managed, by Communicare, which was the recipient of state
subsidies in respect
of each such complex.
[46]
RTC’s interest in the Tafelberg property in particular, is the
fact that it says that the site presents an ideal opportunity
for the
development of a social housing scheme to provide much needed
affordable housing to the women and men who live and work
in the Sea
Point area, be they domestic workers, nurses, shop assistants,
employees in the hospitality industry or semi-skilled
workers earning
enough to meet the income threshold set under the SHA.  RTC
complains that instead of properly considering
the suitability of the
site for social housing (and in so doing beginning to break down the
barriers set up by spatial apartheid),
the Province has been driven
by purely financial considerations in selling the property to the Day
School, whose declared intention
is to relocate, from the
neighbouring suburb of Camps Bay, an orthodox Jewish day school,
primarily dedicated to the religious
instruction of scholars who may
one day enter the rabbinical calling.
[47]
I should perhaps point out at this
stage that the Day School says too that it intends to develop the
property extensively: with
not just a day school exclusively for
Jewish children, but a kosher restaurant, a day clinic/hospital and
the provision of new
accommodation for retired Jewish senior
citizens, currently accommodated in Highlands House on the slopes of
Devil’s Peak,
which is said to be overcrowded and in a poor
state of repair.  In short, the Day School’s declared
intention is, in
embracing and advancing the rights protected under
s15(1)
[15]
,
s30
[16]
and s31
[17]
of the Constitution, the development
of the site into a precinct dedicated exclusively to the service of
Cape Town’s admittedly
dwindling Jewish community.
AN
OVERVIEW OF THE PARTIES’ RESPECTIVE POSITIONS
[48]
As will be seen from the relief claimed in the notice of motion cited
above, RTC has adopted a multi-pronged attack.  Firstly,
it
attacks the failure of the Province and the City, over the first 25
years of democratic rule, to address the issue of spatial
apartheid
in central Cape Town, and to this end it seeks declaratory relief,
and a structural interdict, to hold the authorities
to account in
respect of their alleged failure to comply with their respective
constitutional and statutory obligations in that
regard.
Consideration of these claims involves an assessment of various
policy instruments applicable to both the Province
and the City.
[49]
Secondly, it attacks the sale of the property on the basis of
legality, alleging a failure to comply with various statutory
and
legal obligations in initially putting the property out to tender and
ultimately concluding the sale to the Day School.  Finally,

there is an attack on the reasonableness of the conduct of the
Province and the City, which it claims renders the sale unlawful,

with particular focus on the failure to properly consider the
prospect of a social housing development on the property.
[50]
The National Minister’s case is of a far narrower focus.  She
contends that the Province was statutorily obliged
to engage and
consult with her prior to the sale of the property, and that the
failure to do so rendered the disposal of the property
unlawful and
liable to be impugned.  The National Minister effectively asks
for the clock to be wound back and for the requisite
engagement to be
ordered to take place before disposal of the property can be
effected.  The National Minister also alleges
non-compliance
with a number of statutory prescripts, which she says renders the
sale of the property unlawful.  Her case
is therefore a legality
attack.
[51]
I shall deal with the respondents’ defences and responses to
the various claims made against them as I evaluate each
of the
applicants’ claims and arguments.  For present purposes it
suffices to say that the attitude of the Province
is that it is an
organ of state that has a very limited ability to generate income of
its own.  It receives its income from
central government (with
all the vagaries that central government’s income generation
may embrace as the economy and revenue
streams change course from
time to time), and the Province says that it is obliged to distribute
that income in accordance with
its own budgetary constraints.  The
bulk of its income is spent on health and education (a figure of
around 70% was mentioned
by Mr. Fagan SC in this regard) and the
remaining 30% must be spread across a number of other departments
including housing, roads
and infrastructure.
[52]
Given the limitations on income generation, the Province says that
the disposal of redundant assets is one way to supplement
its
coffers.  In the context of the Tafelberg site (which was
commercially valued at around R108m), the offer of R135m from
the Day
School was, as Mr. Fagan SC put it in the vernacular, a ‘no-
brainer’.  I understood counsel to suggest
through the use
of this popular euphemism that the decision to sell was so obvious
that it required little or no thought on the
part of the Province.
But regardless of the enormous financial benefit afforded by
the sale, the Province took issue with
both the suggestions of any
statutory non-compliance or any illegality on its part.  It does
not dispute that it has failed
to facilitate the provision of social
housing in the Cape Town CBD and adjacent areas.
[53]
In relation to the National Minister’s assertion that it was
duty bound to consult her, the Province disputed the existence
of any
statutory obligation in that regard, but went on to point out that
when it had responded to the National Minister’s
enquiries, the
lines of communication had effectively fizzled out.
[54]
The City’s financial resources
are more extensive than those of the Province given that, besides
allocations from central
government, it has the power to levy rates
and taxes and other streams of income on its inhabitants.  The
City’s position,
said Ms. Bawa SC, was that the progressive
realisation of the right to housing, as contemplated in the
Constitution and as interpreted
in
Grootboom
[18]
,
did not entitle a party to demand a
specified form of housing, such as social housing, in a designated
area, for example, central
Cape Town.  Ms. Bawa SC went on to
explain how the City effectively found itself between a rock and a
hard place.  Its
waiting list for rental stock, particularly in
the Coloured areas, went back several decades, while it also had to
contend with
the influx of millions of people from the former
Bantustans, such as Transkei and Ciskei, and the demand for control
over illegal
land occupations and squatting.
[55]
In relation to the need for social housing the City’s position
is that this type of accommodation is of fairly recent
origin, given
that the SHA is legislation which has only been on the statute book
for the last 10 years or so, while SPLUMA is
even more recent –
of the order of 5 years.  The City’s acceptance that it
has done little to address the absence
of social housing in central
Cape Town is therefore qualified by this contextual setting.
[56]
On the policy front, in purporting to address spatial apartheid, the
City referred the Court to a plethora of policy documents
which it
had adopted over the years and which were said to be in the process
of implementation.  It was important to note
too, said counsel,
that the City Council had been controlled by different political
parties during the past 25 years, with differing
political agendas,
and that this factor was an important consideration in evaluating its
compliance with its Constitutional obligations.
[57]
The Day School effectively makes common cause with the Province in
endorsing the legality of the sale of the property to it.
There
is an explanation of the Day School’s current accommodation
predicament (largely of its own making, it must be
said) and the
broader advantages that the site offered for the community.  As
Mr. Farlam SC rather pithily put it, the proposed
development was
‘Good for the site, good for Sea Point and good for the City
.
’
[58]
Given that there were considerable areas of overlap in the respective
parties’ cases, counsel shared the burden of labour,
so that
Mr. Jamie SC dealt with some aspects of the case which also fell
within the remit of Mr. Hathorn SC’s argument.  Likewise

Messrs Fagan SC and Farlam SC also divvied up their arguments in
relation, for example, to the constitutional and administrative
law
issues.  We are indebted to counsel for this sensible approach
to their workloads in an endeavour to curtail the duration
of the
hearing.
[59]
Against that more general background, I consider it prudent to
commence with an overview of the various statutory and policy

instruments at play in this matter.
THE
APPROACH TO LITIGATION INVOLVING THE VINDICATION OF SOCIO-ECONOMIC
RIGHTS
[60]
The point of departure in this case is
the Constitution and it is therefore necessary to consider first
principles.  In
Mazibuko
[19]
O’Regan J contextualized, in
fairly general terms, the approach to the realization of the
socio-economic rights incorporated
in the Constitution.
‘
[59]
At the time the Constitution was adopted millions of South Africans
did not have access to the basic necessities of life, including

water.  The purpose of the constitutional entrenchment of social
and economic rights was thus to ensure that the State continue
to
take reasonable legislative and other measures progressively to
achieve the realisation of the rights to the basic necessities
of
life.  It was not expected, nor could it have been, that the
State would be able to furnish citizens immediately with all
the
basic necessities of life.  Social and economic rights empower
citizens to demand of the State that it act reasonably
and
progressively to ensure that all enjoy the basic necessities of life.
In so doing, the social and economic rights enable
citizens to
hold government to account for the manner in which it seeks to pursue
the achievement of social and economic rights.’
[61]
In
Grootboom
[20]
the Constitutional Court was
specifically required to consider the right to housing protected
under s26 of the Constitution –
the first time that the Court
dealt with the issue of the socio-economic rights guaranteed under
the Constitution.  The Court
made it clear that there was an
obligation on the State to take reasonable legislative and other
measures to achieve the progressive
realisation of the housing rights
under consideration in that case, and stressed that this entailed
both the obligation to formulate
reasonable programmes designed to
achieve the objective in issue and to implement those programmes
reasonably.  Yacoob J continued
thus:
‘
[43]
In determining whether a set of measures is reasonable, it will be
necessary to consider housing problems in their social,
economic and
historical context and to consider the capacity of institutions
responsible for implementing the program.  The
program must be
balanced and flexible and make appropriate provision for attention to
housing crises and to short, medium and long
term needs.  A
program that excludes a significant segment of society
[21]
cannot
be said to be reasonable.  Conditions do not remain static and
therefore the program will require continuous review.’
[62]
In
TAC
[22]
the Constitutional Court stressed that
the role of the courts is to guarantee that democratic processes are
protected and to ensure
accountability, responsiveness and openness,
as required by s1 of the Constitution.  In relation to
socio-economic rights,
it was said that the courts have to ensure
that legislative and other measures taken by the State are
reasonable.  The role
of the courts in that regard is restrained
by focusing on ensuring that the State takes measures to meet its
constitutional obligations
and by evaluating the reasonableness of
such measures.
[63]
In
Mazibuko
O’Regan J stressed
that while the Constitution does not require that the State
immediately furnish citizens with all the basic
necessities of life,
constitutionally guaranteed socio-economic rights
per
se
empower citizens to
demand of the State that it acts reasonably, and ensures that all
persons enjoy access to the basic necessities
of life on a
progressive basis.  This enables citizens to hold government
accountable (through both the ballot box and litigation)
for the
manner in which it ought to promote realisation of these rights.
[23]
[64]
Further, challenges involving the
assertion of socio-economic rights require the State to explain and
give reasons for its decisions
and actions.  In doing so,
government is obliged to provide access to the information it has
considered, as well as the processes
followed, in determining the
content and implementation of its policies.  Disclosing such
information reveals the substantial
importance of socio-economic
rights litigation: if the process followed by government is flawed,
or the information gathered is
inadequate or incomplete, appropriate
relief may be sought.
[24]
[65]
And so,
Mazibuko
stresses that
socio-economic rights litigation represents an important mechanism to
hold the democratic arms of the government to
the promises in the
Constitution.  In this way, litigation fosters a form of
participative democracy that holds government
accountable and
requires it to answer, between elections, for specific aspects of its
policy.  That goal is served when government
respondents take
steps in response to such litigation to ensure that the measures they
adopt are reasonable, within the meaning
of the Constitution.  This
contributes to the deepening of democracy.
[25]
[66]
In his address, Mr. Hathorn SC stressed that the RTC challenge was
not directed at government’s statutory or policy framework

aimed at advancing spatial justice through the provision of
affordable, well-located housing.  That framework had largely

been established by national government through the adoption,
inter
alia,
of legislation such as the
Housing Act, the
SHA and SPLUMA.
Rather, said counsel, the challenge was in respect of the
manner in which the constitutional and statutory
obligations (as well
as the policies formulated in terms of the applicable legislation)
had been implemented by the Province and
the City.
[67]
In short, it was argued that the RTC application required the
Province and the City to explain why their policies directed
at
redressing spatial injustice were reasonable; to explain the
processes they had undergone in formulating such policies; to explain

the alternatives considered; and to state the reasons why they opted
for the policies selected.
[68]
In this regard the applicants rely specifically on the following
passages in
Mazibuko:
‘
[161]
When challenged as to its policies relating to social and economic
rights, the government agency must explain why the policy
is
reasonable.  Government must disclose what it has done to
formulate policy: its investigation and research, the alternatives

considered, and the reasons why the option underlying the policy was
selected.  The Constitution does not require government
to be
held to an impossible standard of perfection.  Nor does it
require courts to take over the tasks that in a democracy
should
properly be reserved for the democratic arms of government.  Simply
put, through the institution of the courts, government
can be called
upon to account to citizens for its decisions.  This
understanding of social and economic rights litigation
accords with
the founding values of our Constitution and, in particular, the
principles that government should be responsive, accountable
and
open.
[162]
Not only must government show that the policy it has selected is
reasonable, it must show that the policy is being reconsidered

consistent with the obligation to ‘progressively realise’
social and economic rights in mind.  A policy that is
set in
stone and never revisited is unlikely to be a policy that will result
in the progressive realisation of rights consistently
with the
obligations imposed by the social and economic rights in our
Constitution.’  (Internal reference omitted.)
THE
PROPERTY AND HOUSING CLAUSES IN THE CONSTITUTION
[69]
As prefaced above, RTC bases its case
on a cluster of legal relationships between the Province, the City
and its residents, rooted
in ss25(5) and 26 of the Constitution and
the legislative framework enacted thereunder to give effect to these
rights.  Given
the relationship between residents and the
authorities, it has been pointed out that these provisions demand
on-going, dynamic
and responsive public responsibilities at all
times.
[26]
[70]
The right conferred in s25(5)
establishes a justiciable socio-economic right to gain access to land
on “an equitable basis.”
[27]
Importantly, it is an ‘
access
’
right as distinct from a more direct
right ‘
to
’
land, and encompasses the appropriate
services and financial assistance required to obtain land.
[28]
Since this right is not limited
by any internal limitation such as ‘progressive realisation’
(as one sees in s26(2)
with regard to housing), the implication is
that access to land is immediately realisable,
[29]
subject, however, to the obligation on
the state under s25(5) to foster conditions for access to land
‘within its available
resources
.’
[71]
I agree with Mr. Hathorn SC’s submission in this regard that,
given the Constitution’s broader goals of redress
in relation
to land in particular, and the advancement of substantive equality,
the phrase ‘on an equitable basis’
must imply a pattern
of access, holding, and the use of land that is designed to alleviate
inequality in terms of race, gender
and other relevant criteria.
[72]
On the other hand, under s26(2) the right to adequate housing imposes
positive obligations on the State to take reasonable
legislative and
other measures to achieve the progressive realisation of that right,
subject always to available resources.  Mr.
Hathorn SC submitted
that the primary focus in relation to RTC’s claims concerned
the positive obligations imposed on the
Province and the City by
ss26(1) and (2), and in particular on the ‘other measures’
contemplated under s26(2), given
that the relevant legislative
provisions were already in place.
[73]
In
Grootboom
[30]
the Constitutional Court undertook a
detailed analysis of the obligations imposed by ss26(1) and (2) and
concluded that:
73.1. There was a negative obligation
on the authorities to desist from impairing the right of access to
adequate housing;
73.2. The right to adequate housing
went further than the provision of bricks and mortar: access to land
and appropriate services
as well as financing was required, thus
providing a link to the s25 rights;
73.3. The State was required to create
conditions which enabled access to housing for people at all economic
levels of our society.
Thus, where citizens were in a financial
position to afford adequate housing, the State’s primary
obligation was to
make it possible for such persons to obtain access
thereto, hence the introduction of the SHA;
73.4. The State’s housing
obligations were contextually dependent and might differ between
provinces, cities and rural areas;
73.5. S26(2) imposed a positive
obligation on the State to devise comprehensive and workable plans to
achieve its statutory obligations;
73.6. The yardstick according to which
the State’s compliance with its statutory obligations was to be
measured was the test
of reasonableness.  Accordingly, any
proposed housing programme had to be co-ordinated, coherent and
comprehensive and determined
at all three tiers of government, in
consultation with each other, with a view towards the progressive
realisation of the right
in question;
73.7. All legislative enactments had
to be supported by appropriate and well-directed policies and
programmes which had to be reasonable,
both in conception and
implementation; and
73.8. The reasonableness of a housing
programme would be determined contextually taking into account, inter
alia, its social, economic
and historical context, the short, medium
and long term needs of the community, while being balanced and
flexible.  Importantly,
the court cautioned that a programme
that excluded a significant segment of society might not be
considered to be reasonable in
the circumstances.
[74]
In conclusion on this overview of the
constitutional imperatives, it must be borne in mind that the
Constitutional Court has repeatedly
referred to s237 of the
Constitution and required that all constitutional obligations are to
be performed diligently and without
delay.
[31]
[75]
In their heads of argument on behalf
of RTC, counsel referred to various international instruments which
they said placed obligations
on the state under international
law.
[32]
I do not intend to traverse
these instruments in this judgment, not because of their lack of
relevance, but because I believe that
the approach mandated by the
Constitutional Court in the cases referred to take account of these
obligations,
viz.
that all levels of state are to
provide affordable housing in locations proximal to socio-economic
goods, services and opportunities,
as expeditiously as possible,
through the design and implementation of policies and programmes that
not only provide better housing
to the poor and marginalised, but
also challenge and overcome spatial and socio-economic inequality and
exclusion.
THE
STATUTORY FRAMEWORK – THE
HOUSING ACT
[76
]
The long title of the
Housing Act of 1997
proclaims that its purpose
is:
‘
To
provide for the facilitation of a sustainable housing development
process; for this purpose to lay down general principles applicable

to housing development in all spheres of government, to define the
functions of national, provincial and local governments in respect
of
housing development. . .’
[77]
In
s2
thereof the legislature has listed the general principles
applicable to housing development, which oblige all three spheres of
government to, inter alia:
77.1. give priority to the needs of
the poor in housing development;
77.2. promote the process of racial,
social, economic and physical integration in urban and rural areas;
77.3. promote higher density housing
developments to ensure economic utilisation of land and services; and
77.4. promote the housing needs of
marginalised women and other groups disadvantaged by unfair
discrimination.
THE
SOCIAL HOUSING ACT
[78
]
I have already dealt above with certain aspects of the SHA, whose
long title reads as follows:
‘
To
establish and promote a sustainable social housing environment; to
define the functions of national, provincial and local governments
in
respect of social housing; to provide for the establishment of the
Social Housing Regulatory Authority in order to regulate
all social
housing institutions obtaining or having obtained public funds; to
allow for the undertaking of approved projects by
other delivery
agents with the benefit of public money; to give statutory
recognition to social housing institutions; and to provide
for
matters connected therewith.’
[79]
The Preamble to the SHA is particularly relevant because it sets the
constitutional, legislative and social context for the
application of
the statute:
‘
WHEREAS
in terms of section 26(1) of the Constitution of the Republic of
South Africa, 1996, everyone has the right to have access
to adequate
housing;
AND
WHEREAS in terms of section 26(2) of the Constitution, 1996, the
State must take reasonable legislative and other measures,
within its
available resources, to achieve the progressive realisation of this
right;
AND
WHEREAS in terms of
section 2(1)(a)
of the
Housing Act, 1997
. . .
national, provincial and local spheres of government must give
priority to the needs of the poor in respect of housing development;
AND
WHEREAS all three spheres of government must, in terms of
section
2(1)(e)(iii)
of the
Housing Act, 1997
, promote the establishment,
development and maintenance of socially and economically viable
communities and of safe and healthy
living conditions to ensure the
elimination and prevention of slums and slum conditions;
AND
WHEREAS all three spheres of government must, in terms of
section
2(1)(e)(vii)
of the
Housing Act, 1997
, promote higher density in
respect of housing development to ensure the economical utilisation
of land and services;
AND
WHEREAS there is a need for social housing to be regulated;
AND
WHEREAS there is a dire need for affordable rental housing for low to
medium income households which cannot access rental housing
in the
open market, . . .’
[80]
In addition, the following general principles incorporated in
s2(1)
of the SHA oblige national, provincial and local government to
support the economic development of low to medium income communities,

by providing housing in close proximity to jobs, markets and
transport and, in terms of
s2(1)(i)
, in particular, are intended to
promote:
‘
(iv)
social, physical, and economic integration of housing development
into existing urban and inner-city areas through the creation
of
quality living environments;
(v)
medium to higher density in respect of social housing development to
ensure the economical utilisation of land and services;
. . .
(viii)
the suitable location of social housing stock in respect of
employment opportunities; . . .
(ix)
the conversion or upgrading of suitable residential and
non-residential buildings for social housing use; . . .’
THE
SPACIAL PLANNING AND LAND USE MANAGEMENT ACT
[81]
The introduction of SPLUMA on 1 July 2015 was an important piece of
legislation in the government’s quest to tackle spatial

apartheid.  Once again, the preamble to that statute is
important in setting the legislative and socio-economic background

which the act seeks to remedy:
‘
WHEREAS
many people in South Africa continue to live and work in places
defined and influenced by past spatial planning and land
use laws and
practices which were based on –
·
racial inequality;
·
segregation; and
·
unsustainable settlement
patterns; . . .
AND
WHEREAS parts of our urban and rural areas currently do not have any
applicable spatial planning and land use management legislation
and
are therefore excluded from the benefits of spatial development
planning and land use management systems;
AND
WHEREAS various laws governing land use give rise to uncertainty
about the status of municipal spatial planning and land use

management systems and procedures and frustrates the achievement of
cooperative governance and the promotion of public interest;
. . .
AND
WHEREAS spatial planning is insufficiently underpinned and supported
by infrastructural investment;
AND
WHEREAS it is the State’s obligation to realise the
constitutional imperatives in . . .
·
section 25 of the Constitution,
to ensure the protection of property rights including measures
designed to foster conditions that
enable citizens to gain access to
land on an equitable basis;
·
section 26 of the Constitution,
to have the right of access to adequate housing which includes an
equitable spatial pattern and
sustainable human settlements; . . .
AND
WHEREAS the State must respect, protect, promote and fulfil the
social, economic and environmental rights of everyone and strive
to
meet the basic needs of previously disadvantaged communities;
AND
WHEREAS sustainable development of land requires the integration of
social, economic and environmental considerations in both
forward
planning and ongoing land use management to ensure that development
of land serves present and future generations;
AND
WHEREAS regional planning and development, urban and rural
development and housing are functional areas of concurrent national

and provincial legislative competence;
AND
WHEREAS provincial planning is within the functional areas of
exclusive provincial legislative competence, and municipal planning

is primarily the executive function of the local sphere of
government;
AND
WHEREAS municipalities must participate in national and provincial
development programmes;
AND
WHEREAS it is necessary that –
·
a uniform, recognisable and
comprehensive system of spatial planning and land use management be
established throughout the Republic
to maintain economic unity, equal
opportunity and equal access to government services;
·
the system of spatial planning
and land use management promotes social and economic inclusion;
·
principles, policies, directives
and national norms and standards required to achieve important urban,
rural, municipal, provincial,
regional and national development goals
and objectives through spatial planning and land use management be
established; and
·
procedures and institutions to
facilitate and promote cooperative government and intergovernmental
relations in respect of spatial
development planning and land use
management systems be developed,
.
. .’
[82]
In summary, therefore, it may be said
that at a macro level SPLUMA seeks to rationalise the Republic’s
previously fragmented
legislative planning and land use management
system, while promoting socio-economic benefits and transforming
racially and spatially
divided settlement patterns, in a manner that
gives effect to the rights protected in ss25 and 26 of the
Constitution.
[33]
[83]
S7 of SPLUMA establishes five principles applicable to spatial
planning, land development and land use management.  The
first
principle of spatial justice requires, amongst other things, that
‘past spatial and other development imbalances must
be
redressed through improved access to and use of land’
.
In
light of SPLUMA’s commitment to give effect to ss25 and 26 of
the Constitution, the development of adequate, affordable
housing on
well-located land thus represents an appropriate mechanism for
advancing and realising the legislative imperative of
spatial
justice.  One of the primary mechanisms for achieving this is
through forward planning policy documents, such as “Spatial

Development Frameworks” (“SDF’s”).
THE
2014 WESTERN CAPE PROVINCIAL SPATIAL DEVELOPMENT FRAMEWORK
[84]
In the founding affidavit in the RTC application there is a detailed
reference to the Provincial SDF, which is evidently a
detailed
document covering a vast array of aspects.  Ms. Adonisi submits
(and I did not understand there to be any debate
in that regard) that
the document is intended to align spatial plans, housing policies,
environmental plans, and development strategies
of national
government, provincial departments, and municipalities.  The
following guiding principles are incorporated therein:
84.1.
Spatial justice
, noting
that ‘[p]ast spatial and other development imbalances should be
addressed through improved access to and use of land
by disadvantaged
communities’;
84.2.
Sustainability and
resilience
, observing that ‘land development should be
spatially compact, resource-frugal, compatible with cultural and
scenic landscapes.
. .’
84.3.
Efficiency,
with the
focus on ‘compaction as opposed to sprawl; mixed-use as opposed
to mono-functional land uses; residential areas
close to work
opportunities as opposed to dormitory settlements; and promotion of
public transport over car use. . .’;
84.4.
Accessibility
, focusing
on ‘improving access to services, facilities and employment,
and safe and efficient transport modes. . .’
and
84.5.
Quality and livability
,
with the focus on ‘liveable settlements [that] finance
individual and community facilities’
.
[85]
The founding affidavit goes on to point out that the Provincial SDF
addresses the important relationship between planning for
future land
use and affordable housing strategies.  It highlights the
following passage in the Provincial SDF as being of
particular
significance in the present matter.
‘
Exclusionary
land markets mitigate against spatial integration of socio-economic
groups and limit affordable housing on well-located
land.  At
the same time, government sits on well-located under-utilised land
and buildings’
[34]
…
.
However,
earlier in the document there is a cautionary word regarding the
distinction between policy and practice:
‘
Given
the complexity and risks of changing current spatial patterns, the
default position is to revert to business as usual.  Politicians,

the private sector, and spatial planners have different agendas and
resultant timelines.  Political decision-making often

contradicts stated spatial policies . . .’
[35]
THE
CITY’S MUNICIPAL SPATIAL DEVELOPMENT FRAMEWORK OF 2012
[86]
Besides the contents of the Provincial SDF, spatial development in
the city is further informed by the City SDF of 2012.  This

document calls for ‘the transformation of the Apartheid City’
by, amongst other things, ‘(where appropriate)
using
state-owned infill sites to help reconfigure the distribution of land
uses and people.’
[87]
The City SDF further aims to increase
the access of low-income earners to affordable housing that is
located in close proximity
to the city’s economic
opportunities.
[36]
In addition, Policy 37 of the
City SDF calls for public-private partnerships to accelerate
integrated housing development.  This
requires the
identification of ‘publicly owned land that can be used for
housing projects, which will be executed in partnership
with the
private sector. Projects should provide for socio-economically
integrated communities in a similar ratio of income distribution
to
the municipality as a whole.’
[37]
RELEVANT
POLICY CONSIDERATIONS
[88]
Lastly in this overview, I turn to the various policies which fall
for consideration in this matter.  At the outset it
must be said
that the Province has always accepted that it has been required to
address spatial imbalances.  This appears
from the affidavit of
Ms. Jacqueline Gooch, the Head of Department in the DTPW, and the
main deponent to the Province’s answering
papers in the RTC
application.  The Province’s obligation in this regard
arises from,
inter alia
, National Government’s Urban
Development Strategy of 1995, the
Development Facilitation Act of
1995
and the National Department of Housing’s Urban Development
Framework of 1997.
[89]
Ms. Gooch testifies that in 2010, the Provincial Cabinet adopted the
Cape Town Central City Regeneration Programme (“the

Regeneration Programme”), the Strategic Framework whereof was
completed in August 2010 (“the August 2010 Strategic

Framework”
)
.  The latter document identified a
number of development precincts in central Cape Town and included a
number of aims and
objectives in line with the statutory framework
outlined above.  These included encouraging development which
supported the
expansion of mixed use, mixed income opportunities, and
development of a percentage of the residential stock in identified
precincts
for affordable housing to ensure that poorer households
were incorporated into the central city.
[90]
In her affidavit Ms. Gooch points out that the Province has been, and
remains committed to, addressing spatial integration.
She goes
on to say that the task of redressing the imbalances occasioned by
South Africa’s discriminatory past is an
objective which will
be realised progressively over time, while simultaneously
acknowledging that spatial apartheid in Cape Town
was nowhere near to
being redressed.
[91]
As far as the City is concerned, Mr. Lungelo Mbandazayo (the
erstwhile City Manager) deposed to its main answering affidavit
in
the RTC application.  He confirms the City’s commitment to
tackle spatial injustice almost 25 years ago in a policy
document
entitled ‘A Guide for the Spatial Development in the Cape
Metropolitan Functional Region: April 1996.’  This
is a
document that specifically recognised that improved land use and
transport patterns were necessary to address ‘the historical

legacy of under-development and deprivation that has contributed to
leaving our cities and towns spatially (and socially) divided
and
highly inefficient.’  The document also identified ‘the
lack of adequate and affordable housing, especially
in areas close to
jobs, transport, community facilities, and so on’ as
constituting serious challenges to ‘restructuring
the region
and redressing the [spatial] imbalances.’  Further
concerns which are identified by Mr. Mbandazayo include
the need for
national and provincial housing policies that make ‘it possible
to develop affordable housing within the inner
Cape Metro Region.’
[92]
Mr. Mbandazayo confirms the need to redress spatial injustice in the
city, acknowledging that apartheid spatial planning has
created a
city which was highly fragmented along racial lines, with the
majority of poor, black communities living on the periphery,
far from
socio-economic opportunities and being deprived of access to
amenities.  He points out that the footprint of apartheid
still
prevails and that this affects the poorest and most vulnerable of the
city’s residents the most, saying that this has
to be redressed
and that the City has a role to play in doing so.  Finally, Mr.
Mbandazayo says that the City accepted that
facilitating access to
residential housing for poorer residents closer to where they worked
and closer to public amenities (including
educational facilities) was
critical for the transformation of Cape Town and had to be pursued.
[93]
Lastly, the deponent to the answering affidavit by the Day School,
Mr. Lance Katz, referred the Court to one of the City’s
more
recent policy documents, of September 2017, entitled ‘Woodstock,
Salt River and Inner City Precinct Affordable Housing
Prospectus’
in which the City affirms its commitment to ‘leverage
City-owned assets such as land and property to achieve
spatial
transformation to create an inclusive urban fabric.’
[94]
In summary then, it is fair to say that the statutory and policy
framework which finds its origins in the Constitution and
the
legislation mandated thereunder, renders it necessary for both the
Province and the City to redress the legacy of spatial apartheid
as a
matter of constitutional injunction.  The constitutional and
statutory obligations of these tiers of government to provide
access
to land and housing on a progressive basis, encompass the need to
urgently address apartheid’s shameful and divisive
legacy of
spatial injustice and manifest inequality.  I shall revert later
to assess whether the Province and the City have
discharged their
constitutional mandates in this regard but before I do so, it is
necessary, as
Grootboom
and
Mazibuko
suggest, to
contextualise the historical and social background to Cape Town’s
spatial apartheid.
THE
HISTORICAL CONTEXT RESULTING IN SPATIAL APARTHEID
[95]
In the extracts of the expert witnesses to which I have already
referred, the core factor giving rise to spatial apartheid
has
already been alluded to.  The policy of influx control, so
systematically enforced by the apartheid government was, arguably,

one of the most pernicious aspects of the implementation of its
segregationist policies.  A suite of legislation was passed

which deprived African, Coloured and Indian citizens of rights of
ownership in, and to occupation of, land while simultaneously

determining where racial groups might reside and how these groups
were to be moved, if they found themselves in areas which the

legislature had proscribed.
[96]
The historical context for the shortage of land and housing in the
Western Cape as it existed in 2000 was, with respect, most
accurately
summarized thus in
Grootboom
:
‘
[6]
The cause of the acute housing shortage lies in apartheid.  A
central feature of that policy was a system of influx control
that
sought to limit African occupation of urban areas.  Influx
control was rigorously enforced in the Western Cape, where
government
policy favoured the exclusion of African people in order to accord
preference to the coloured community: a policy adopted
in 1954 and
referred to as the ‘coloured labour preference policy’.
In consequence, the provision of family housing
for African
people in the Cape Peninsula was frozen in 1962.  This freeze
was extended to other urban areas in the Western
Cape in 1968.
Despite the harsh application of influx control in the Western
Cape, African people continued to move to the
area in search of jobs.
Colonial dispossession and a rigidly enforced racial
distribution of land in the rural areas had
dislocated the rural
economy and rendered sustainable and independent African farming
increasingly precarious.  Given the
absence of formal housing,
large numbers of people moved into informal settlements throughout
the Cape Peninsula.  The cycle
of the apartheid era, therefore,
was one of untenable restrictions on the movement of African people
into urban areas, the inexorable
tide of the rural poor to the
cities, inadequate housing, resultant overcrowding, mushrooming
squatter settlements, constant harassment
by officials and
intermittent forced removals.  The legacy of influx control in
the Western Cape is the acute housing shortage
that exists there
now.’  (Internal references omitted.)
[97]
Coupled with the policy of influx control was the enforcement of the
Group Areas Act, 41 of 1950, which saw the large scale
forced removal
of Coloured and Indian people during the 1960s and 1970s, from
District Six and parts of, inter alia, Woodstock,
Salt River,
Kensington, Sea Point, Green Point and De Waterkant, to newly created
suburbs such as Manenberg, Hanover Park, Belhar
and Mitchells Plain
on the Cape Flats.  Working people who once lived close to their
places of employment were then required
to travel long distances,
using an inadequate public transport system, to earn their weekly
wages, not to speak of their limited
access to public and social
amenities.
[98]
In his affidavit on behalf of the City, Mr. Mbandazayo confirms that
the effect of apartheid policies was the systemic deprivation
of
persons of colour of access to urban land and residential
accommodation across Cape Town, in favour of Whites.  The
Province,
too, acknowledged in 2013, in the midst of a debate around
the utilization of the Tafelberg site, the state of inequality in
land
use in Cape Town.  In motivating for the consideration of
the use of the property for housing purposes in a letter to the DTPW

(to which further reference will be made later), the Head of
Department of the PDHS, Mr. Mbulelo Tshangana, remarked that “Cape

Town is one of the most segregated cities in the world’.
[99]
RTC also adduced the expert evidence of Mr. Malcolm McCarthy, the
General Manager of the National Association of Social Housing

Organizations (“NASHO”), who deals with the dearth of
social housing projects in, or near, central Cape Town.  Mr.

McCarthy holds the view that apartheid planning has been particularly
effective in Cape Town, resulting in an unjust, inefficient
and
unsustainably segregated urban environment.  He attributes the
failure to implement social housing initiatives in the
Cape Town CBD
and surrounds, to the skewed manner in which the Province conceived
and implemented its so-called “urban regeneration”

objective.
[100]
Mr. McCarthy points out that since the late 1990s, the City and the
Province’s approach to urban regeneration has had
the effect of
forcing lower income households out of the centre of the city and the
surrounding areas, without providing new opportunities
for such
people wanting to live closer to their places of employment.  One
has seen how old office blocks in the city centre
have been
renovated, and new buildings have been erected, to provide up-graded
and up-market residential accommodation to households
in the income
bracket reserved for the top 20% of income earners, while the
so-called “gentrification” of areas such
as Bo-Kaap,
Woodstock and Salt River has seen rental properties accommodating
poor and working people snapped up by developers,
for the
construction of apartment blocks where rentals are beyond their
reach.
[101]
The result is, firstly, that the people who least can afford the cost
of transportation, have been moved further out to the
periphery,
while those who can afford that cost have taken up residence in the
inner city, in the process pushing up the demand
for such residential
accommodation and escalating property prices.  Secondly, this
phenomenon has the direct consequence that
the procurement of land
for social housing has become inordinately expensive and scarce.  The
state cannot afford to pay market
related prices for the acquisition
of land in the inner city, and the only meaningful way in which this
shortage of land for social
housing projects can be addressed by the
State, is to make use of such pockets of state-owned land as exist in
and around the CBD.
[102]
Simply put, the procurement by the State of privately owned land in
the inner city has become prohibitively expensive.  Indeed,
at
the end of the day, there is no dispute between the Province and the
City, on the one hand, and RTC on the other, over the shortage
of
state-owned land in or near the inner city which is available for the
development of affordable housing and, in particular,
social housing
projects.  In the result, unless meaningful attempts are made by
the authorities to redress the situation,
spatial apartheid will be
perpetuated, not only in the inner city areas but across the greater
Cape Peninsula.
[103]
I shall return later to the question of compliance by the City and
the Province with their respective constitutional obligations
as they
arise from RTC’s notice of motion, and turn now to the issues
relevant to the disposal of the property to the Day
School.  The
question of interpretation of the various statutory instruments is
central to this.
STATUTORY
INTERPRETATION UNDER THE CONSTITUTION
[104]
In the founding affidavit RTC asserts that the Province misconceived
its constitutional and statutory obligations in relation
to land
reform in the process of disposing of the Tafelberg site.  This
claim therefore requires an understanding of the rights
and duties of
government bodies in general, and the Province in particular, in
respect of land which they own.  The point
of departure in that
regard is the property clause – s25 of the Constitution –
and any enquiry must proceed on the
basis of statutory interpretation
under the Constitution.
[105]
The cases dealing with statutory
interpretation in the constitutional era are legion.  More
recently, the Constitutional Court
restated in
Makate
[38]
that the ‘mandatory
constitutional canon’ of construction, referred to earlier in
Fraser
[39]
,
required every court to read legislation through the prism of the
Constitution, s39(2) whereof requires the court in so doing
to
‘promote the spirit, purport and objects of the Bill of
Rights.’  This has a number of implications for a court

interpreting such a provision.
[106]
Firstly, where a statutory provision
is capable of more than one meaning, the court must prefer an
interpretation which renders
it constitutionally compliant over one
that does not, in the event that it is reasonably possible to do so.
Further, the
court is obliged to prefer an interpretation which
better promotes the spirit, purport and objects of the Bill of
rights, even
if none of the interpretations would render the
statutory provision unconstitutional.
[40]
[107]
Secondly, the provision in question
must be reasonably capable of bearing the interpretation opted for.
In
Public Servants
[41]
the Constitutional Court noted that
the application of s39(2) required ‘that the language used be
interpreted as far as possible,
and without undue strain, so as to
favour compliance with the Constitution.’
[108]
In the third place, the Constitution
generally (and s39(2) in particular) requires the court to ‘prefer
a generous construction
over a merely textual or legalistic one in
order to afford claimants the fullest protection of their
constitutional guarantees.’
[42]
[109]
Next, the Constitutional Court has
cautioned against ‘blinkered peering at an isolated provision’
in a statute.  Rather,
statutory interpretation should consider
both the purpose of the provision and the context in which it
appears.  Accordingly,
courts should adopt a purposive
interpretation which is compatible with the mischief which the
statute in question seeks to address.
This in turn requires
courts to consider the object of the statute as a whole, then to have
regard to the provision under
consideration and ultimately to seek,
as far as possible, to interpret the legislation so that it furthers
that objective.
[43]
[110]
Lastly, while the text of the statute
itself is the starting point, s39(2) implies context as the
touchstone for contemporary statutory
interpretation.  Context,
in turn, embraces both ‘the social and historical background of
the legislation’ and
‘the grid . . . of related
provisions and of the statute as a whole, including its underlying
values.’
[44]
INTERPRETING
SECTION 25 OF THE CONSTITUTION
[111]
In general terms it may be said that
the Province enjoys all the rights customarily afforded to private
land owners.
[45]
However, its powers and duties
in respect of its land are subject to the residual provisions of s25
of the Constitution
[46]
and are also circumscribed by any
applicable statutes – in this case GIAMA and the WCLAA.  This
then obligates the State
qua
landowner, for instance, to address
the historical perversity of the grossly unequal distribution of
land, as part of its broader
societal obligation, while
simultaneously exercising its individual property rights.  Clearly,
a balancing act is implied
in this regard and the approach was
described by the Constitutional Court thus in
FNB
:
[47]
.
‘
[49]
The subsections which have specifically to be interpreted in the
present case must not be construed in isolation, but in the
context
of the other provisions of s25 and their historical context, and
indeed in the context of the Constitution as a whole.
Subsections
(4) to (9) all, in one way or another, underline the need for and aim
at redressing one of the most enduring
legacies of racial
discrimination in the past, namely the grossly unequal distribution
of land in South Africa.  The details
of these provisions are
not directly relevant to the present case, but ought to be borne in
mind whenever s25 is being construed,
because they emphasise that
under the 1996 Constitution the protection of property as an
individual right is not absolute but subject
to societal
considerations.’  (Internal reference omitted.)
[112]
As I have already mentioned, the imperative to address the
historically unequal distribution of land, implicit in s25, alerts
a
court to the priority accorded to the remedies contemplated in the
property clause in the Constitution.
112.1. So, one sees in s25(4)(a) the
injunction that ‘the public interest includes the nation’s
commitment to land reform’
.
112.2. Then, s25(5) enjoins the State
to ‘take reasonable legislative and other measures, within its
available resources,
to foster conditions which enable citizens to
gain access to land on an equitable basis.’
112.3.
Lastly,
s25(8) directs that no provision of s25 ‘may impede the state
from taking legislative and other measures to achieve
land, water and
related reform, in order to redress the results of past racial
discrimination, provided that any departure from
the provisions of .
. . [s25] . . . is in accordance with the provisions of section
36(1).’
[48]
[113]
I have already dealt with the mandated
approach to litigation involving the vindication of socio-economic
rights.  Given that
the provisions of s25(5) (upon which RTC,
inter alia, relies) establish a justiciable socio-economic right, the
measures taken
by the Province in the present situation must meet the
constitutional standard of reasonableness.  Such reasonableness,
in
turn, is to be assessed with reference to context, which is best
achieved by considering the purpose for which the measure is
pursued.
[49]
I turn next to consider the
particular statutes which fall to be considered in this case.
GIAMA
[114]
GIAMA is national legislation passed in 2007, which came into effect
on 30 April 2009, and whose long title reads as follows:
‘
To
provide for a uniform framework for the management of an immovable
asset that is held or used by a national or provincial department;
to
ensure the coordination of the use of an immovable asset with the
service delivery objectives of a national or provincial department;

to provide for issuing of guidelines and minimum standards in respect
of immovable asset management by a national or provincial
department;
and to provide for matters incidental thereto.’
[115]
In s3 of GIAMA the objects of the Act are stated to be to:
‘
(a)
provide a uniform immovable asset management framework to promote
accountability and transparency within government;
(b)
ensure effective immovable asset management within government;
(c)
ensure coordination of the use of immovable assets with service
delivery objects of a national or provincial department and
the
efficient utilisation of immovable assets;
(d)
optimise the cost of service delivery by –
(i)
ensuring accountability for capital and recurrent works;
(ii)
the acquisition, reuse and disposal of an immovable asset;
(iii)
the maintenance of existing immovable assets;
(iv)
protecting the environment and the cultural and historical heritage;
and
(v)
improving health and safety in the working environment.’
[116]
In considering the application of GIAMA in this matter, it is
important to have regard to the distinction drawn in the definitions

in s1 between a ‘custodian’ and a ‘user’:
‘“
custodian
”
means
a national or provincial department referred to in section 4
represented by the Minister of such national department, Premier
of a
province or the MEC of such provincial department, so designated by
the Premier of that province; . . .’
‘“
user
”
means
a national or provincial department that uses or intends to use an
immovable asset in support of its service delivery objectives
and
includes a custodian in relation to an immovable asset that it
occupies or intends to occupy, represented by the Minister of
such
national department, Premier of a province or MEC of such provincial
department, so designated by the Premier of that province.’
[117]
The statutory relationship between, and the responsibility of, the
custodian and user in each case, is described in s4 of
GIAMA:
‘
(1)
The departments managed by the following executive organs of state
within the national and provincial spheres of government
are
custodians:
(a)
the Minister, in relation to the immovable assets that vest in the
national government, except in cases where custodial functions
were
assigned to other Ministers by virtue of legislation before the
commencement of this Act;
(b)
subject to subsection (5), the Minister responsible for Land Affairs,
in relation to immovable assets acquired for land reform,
as well as
immovable assets that vest in the national government and are
situated within the former homelands, except in cases
where custodial
functions in respect of those areas were assigned to another Minister
by virtue of specific legislation before
the commencement of this
Act; and
(c)
a Premier of a province or an MEC designated by the Premier, in
relation to an immovable asset that vests in a provincial government.
(2)
A custodian –
(a)
acts as the caretaker in relation to an immovable asset of which it
is the custodian;
(b)
may –
(i)
in the case of a national department, acquire and manage an immovable
asset as contemplated in section 13 and, subject to the
State Land
Disposal Act, 1961 (Act No. 48 of 1961), or any other Act regulating
the disposal of state land, dispose of that immovable
asset;
(ii)
in the case of a provincial department, subject to the relevant
provincial land administration law, acquire, manage and dispose
of an
immovable asset; and
(c)
is, subject to section 18, liable for any action or omission in
relation to an immovable asset of which it is the custodian,

excluding an act or omission in good faith.
(3)
The Minister or MEC of a user is –
(a)
subject to section 18, responsible for the performance of the
functions assigned to it by this Act or any agreement with the

custodian of the immovable asset that it occupies; and
(b)
liable for any act or omission in relation to the immovable asset
concerned, excluding an act or omission in good faith.
(4)
A custodian and user must settle any dispute between them in the
manner contemplated in the
Intergovernmental Relations Framework Act,
2005
. . .’
[118]
Applying these provisions of GIAMA to this matter, the position is
that the DTPW is the custodian of immovable property vesting
in the
Province, including the Tafelberg site, and in terms of
s4(2)
of
GIAMA, the DTPW acted as the caretaker of that property of which it
was the custodian.  As custodian, the DTPW was then
empowered by
s4(2)(b)(ii)
of GIAMA to acquire, manage and dispose of the Tafelberg
site.  Its power in that regard was, however, subject to any
relevant
Provincial statute, such as the WCLAA.
[119]
S5
of GIAMA sets out certain statutory principles relating to the
management of state owned immovable assets, including the use,
acquisition
and the disposal thereof. Of relevance for present
purposes is the following:
‘
5(1)
The following are principles of immovable asset management:
(a)
An immovable asset must be used
efficiently and becomes surplus to a user if it does not support its
service delivery objects at
an efficient level and if it cannot be
upgraded to that level; . . .
(e)
when an immovable asset is acquired or disposed of best value for
money must be realised;
(f)
in relation to a disposal, the custodian must consider whether the
immovable asset concerned can be used –
(i)
by another user or jointly by different users;
(ii)
in relation to social development initiatives of government; and
(iii)
in relation to government’s socio-economic objectives,
including land reform, black economic empowerment, alleviation
of
poverty, job creation and the redistribution of wealth. . .’
[120]
S6
of GIAMA requires the preparation of various forms of immovable
property asset management plans, by the respective accounting
officers
of the user and custodian departments.  In so doing the
accounting officer in question must:
‘
(a)
meet the objects of this Act;
(b)
adhere to the principles contemplated in section 5;
(c)
adhere to any regulations published in terms of section 20; and
(d)
adhere to standards issued in terms of section 19.’
[121]
Under s7 of GIAMA provision is made for custodian asset management
plans (“C-AMPs”), while s8 deals with user
asset
management plans (“U-AMPs”).  The purpose of these
plans is to provide a basis for the strategic planning
and management
of immovable assets owned by, inter alia, the Province.  On 20
October 2008, some 6 months before GIAMA came
into operation,
National Government published “User Guidelines” and
“Custodian Guidelines”, which contained
detailed
requirements as to what both U-AMPs and C-AMPs must contain.
[122]
Under s10 of GIAMA the U-AMP –
‘
(a)
is the principal immovable asset strategic planning instrument which
guides and informs all immovable asset management decisions
by the
user;
(b)
binds the user in the exercise of its executive authority, except to
the extent of any inconsistency between a user immovable
asset
management plan and this Act or the immovable asset management
guidelines published by the Minister under section 19, in
which case
this Act or those guidelines prevail.’
[123]
Furthermore, s11 of GIAMA requires that the user –
‘“
must
give effect to its user immovable asset management plan and conduct
immovable asset management in a manner which is consistent
with this
Act and its user immovable asset management plan.’
[124]
Lastly, there is s13(3) of GIAMA which permits a custodian to dispose
of a surplus immovable asset:
‘
(a)
by the allocation of that immovable asset to another user; or
(b)
subject to the
State Land Disposal Act, 1961
… and any
provincial land administration law, by the sale, lease, exchange or
donation of that immovable asset or the surrender
of a lease.’
Importantly,
for the purposes of this matter, ‘surplus’ is defined
under
s1
to mean ‘that the immovable asset no longer supports
the service delivery objectives of a user’.
[125]
To sum up, once an immovable asset becomes ‘surplus’ it
should be surrendered to the custodian, which becomes
its caretaker,
and is required to manage it in accordance with its C-AMP.  A
custodian may dispose of a surplus immovable
asset, either to another
user or, alternatively, to a private entity, but before a disposal to
a private entity can take place,
a two-stage decision-making process
is involved.
[126]
Firstly, the user of the asset must
decide whether the asset is ‘surplus’, i.e. that it does
not support its service
delivery objectives at an efficient level and
cannot be upgraded to that level.
[50]
This decision must be made in terms of
the U-AMP, which is the principal immovable asset strategic planning
instrument and is binding
on the user.  GIAMA states explicitly
that users must conduct immovable asset management in a manner
consistent with the Act
and their U-AMPs.
[51]
[127]
Thereafter, the custodian must decide,
in terms of its C-AMP, whether the surplus asset can be allocated to
another user or jointly
to different users
[52]
,
having regard to government’s social development initiatives
and socio-economic objectives, including land reform.
[53]
THE
WCLAA
[128]
In 1998 the Legislature of the Province adopted the WCLAA and, while
that statute precedes the promulgation of GIAMA by more
than a
decade, it constitutes ‘relevant provincial land
administration’ law as contemplated in s4(2)(b)(ii) of GIAMA.

Further, on 16 October 1998, the Premier (pursuant to the
powers granted under s10) promulgated the applicable regulations
in
respect of the WCLAA.
[129]
The long title of the WCLAA reflects that its purpose is ‘(t)o
provide for the acquisition of immovable property and
the disposal of
land which vests in it by the Western Cape Provincial Government and
for matters incidental thereto.’
[130]
S3(1) of the WCLAA empowers the
Premier to dispose
[54]
of provincial state land, while s4
requires the Premier to co-ordinate the provincial government’s
actions regarding the administration
of provincial state land with
the national and local spheres of government with a view, firstly, to
realising the nation’s
commitment to land reform, and other
reforms required to bring about equitable access to all relevant
natural resources, and, secondly,
to rationalise the custody,
administration and disposal of such land.
[131]
In terms of the WCLAA Regulations, there is a rather cumbersome
process applicable to the disposal of provincially owned land:
131.1. The offeror completes and signs
a written offer;
131.2. The written offer must contain
a provision to the effect that the Cabinet, after consulting the
Provincial Property Committee
(“the PPC”) may within 21
days of receipt of its written representations received pursuant to
the provisions of s3(3)
of the WCLAA, or such longer period (not
exceeding three months) as the Cabinet may determine, in writing
prior to the expiry of
the 21-day period, resile from any contract
resulting from the offer;
131.3. Where the offer exceeds the sum
of R10m or where the proviso to sub-regulation 4(b) is applicable,
the offer itself, a valuation
of the land as determined by an
independent valuer, and the DTPW’s written report must be
submitted to the PPC;
131.4. The PPC must report in writing
to the Cabinet on the offer, whereafter the Cabinet shall decide
whether the offer is to be
accepted;
131.5. Should the Cabinet so decide,
the Provincial Minister responsible for administering the provincial
state land portfolio shall
sign the written contract on behalf of the
Province, subject to the provisos to regulation 4(1);
131.6. If a written contract has been
duly signed on behalf of the Province, that contract shall constitute
a proposed disposal
and the Minister shall exercise the powers and
comply with the duties conferred on the Premier by ss3(2), (3) and
(4) of the WCLAA;
131.7. S3(2) and (3) of the WCLAA
provide for a notice-and-comment public participation process in
respect of the proposed disposal,
whereafter the Cabinet may decide
to resile from any contract resulting from the offer.
THE
PRELIMINARY PROCESS FOLLOWED BY THE PROVINCE IN RELATION TO THE
DISPOSAL OF THE TAFELBERG SITE
[132]
When the remedial school was moved to Bothasig in June 2010, the DTPW
was the custodian under GIAMA of both the school on
the Tafelberg
site and Wynyard Mansions.  The Western Cape Education
Department (“WCED”) was the user under GIAMA
of the
school premises, while the PDHS was the user of Wynyard Mansions, and
continued to be so until the last tenant, Ms. Angela
Wise, was
evicted from her flat in the building with effect from 30 May 2014.
[133]
The Province’s case is that as of June 2010 both the Tafelberg
School site and the Mansions site became ‘surplus’
under
GIAMA ‘by operation of law.’  Ms. Gooch said as much
in a letter dated 1 April 2016, when Ndifuna sought
reasons from the
Province for the sale of the property to the Day School and counsel,
for the Province persisted with this interpretation
in argument.
[134]
RTC takes a different view, however, and contends that, given the
aforementioned definition of ‘surplus’ under
GIAMA, read
with the provisions of s5(1)(a) thereof, the relevant decision-maker
is required, first, to establish that the immovable
asset in question
does not support the user’s service delivery objectives at an
efficient level and, thereafter, the decision-maker
must be satisfied
that the property cannot be upgraded to such an efficient level.
[135]
As far as the WCED was concerned, the school premises were evidently
no longer suited to, nor required for, educational purposes
from 2010
and that part of the Tafelberg site might notionally therefore have
been regarded as surplus to its needs.  As far
as the PDHS was
concerned, it remained the user of the Wynyard Mansions premises
until at least 30 May 2014 and RTC argues that
it is only from that
date that one can begin to consider whether that part of the
Tafelberg site was ‘surplus’”
under GIAMA.  This
argument finds resonance in the fact that on 26 March 2013, as
indicated earlier, the Head of the PDHS,
Mr. Tshangana, wrote to The
Manager: Property Planning in the DTPW regarding both erven 1424 and
1625, stating that the PDHS –
‘
would
like to confirm that erven 1424 and 1625, Sea Point, are needed to
further the Western Cape Government Provincial Objective
6, which
speaks to developing integrated and sustainable human settlements.’
The
documentation before the Court therefore reflects that the PDHS was
interested in using the entire property for sustainable
housing
purposes long after 2010.
THE
WESTERN CAPE PROPERTY DEVELOPMENT PROCESS
[136]
I referred above to the Regeneration Programme for the central city
area, which was adopted by the Provincial Cabinet in September
2010.
The following month the Cabinet also adopted the Western Cape
Property Development Process (“the WCPDP”),
which was a
policy-cum-strategy document designed to establish the process to be
followed by the Province, in relation to property
development
projects to be undertaken by private developers on surplus provincial
land, in an attempt to contribute to the Province’s
social,
economic and environmental transformation.
[137]
In March 2011 the erstwhile MEC, Mr. Robin Carlisle, added the
Tafelberg site to the Regeneration Programme.  Thereafter,
and
in May 2011, the PDHS hosted a workshop to discuss the viability of
social housing on the various Regeneration Programme sites
and,
flowing from this discussion, a process was adopted to investigate
generally the feasibility of social housing on such sites.
This
perforce included the Tafelberg site.
[138]
However, whilst the process initiated by the PDHS (then still a GIAMA
user) was under way, the DTPW,
qua
custodian, began
implementation of the WCPDP and commenced a so-called “Phase 1:
High Level Scoping” exercise aimed
at establishing the
development potential of the Tafelberg property.  RTC argues
that in so doing the DTPW jumped the gun
in taking a step in respect
of the property which was not sanctioned under either the WCPDP or
GIAMA.  It contends that the
site was not (i) unused or (ii)
under-utilised and (iii) not used for its intended purpose, as
defined in the WCPDP and, importantly,
says RTC, the site was not
surplus under GIAMA.
[139]
In July 2011 a “Heritage Impact Assessment” was conducted
as part of the Phase 1 Scoping exercise and subsequently,
in October
2011, an “Urban Design Report” was completed.  Neither
exercise considered any form of affordable housing
on the Tafelberg
site.
[140]
Some 18 months later, and on 26 February 2013, the DTPW sent letters
to various provincial departments requesting them ‘to
advise
whether the [Tafelberg] properties were required for infrastructure
purposes to further government objectives.’  The
DTPW made
it clear that, failing such infrastructure requirements, it would
consider disposing of the property under the WCLAA.
Written
representations were invited from fellow departments by 28 March
2013.
[141]
It was in response to this invitation that Mr. Tshangana wrote the
letter of 26 March 2013 to the DTPW, to which reference
has already
been made.  The document seeks to make out a case for social
housing and I shall quote from it as it provides
a useful summary of
the major considerations at play in this case.
‘
The
Department would like to confirm that erven 1424 and 1625, Sea Point,
are needed to further the Western Government provincial
objective 6,
which speaks to developing integrated and sustainable human
settlements.  These sites will specifically contribute
to
sustainable provincial resource use, which includes increasing the
densities of human settlements, gap reduction through partnerships

and investment and the enhanced supply of affordable rental housing
for persons earning between R 1500 - R7500 [per month] . .
.
The
demand for affordable rental opportunities, situated within close
proximity to economic opportunities, transportation nodes
and social
infrastructure can thus not be under-estimated, nor can the
opportunities the sites present for racial and economic
integration.’
[142]
After presenting a map depicting average residential property prices
in the Peninsula, the Head of Department (“HOD”)

continues:
‘
What
[the map] essentially shows is that very limited opportunities exist
for persons in the income bracket R1500 - R7500 to own
property
anywhere in close proximity to the City Centre, where they may work,
go to school, etc.  If ownership is a distant
possibility for
many Capetonians, [the map] particularly highlights the need for
Government to develop affordable, high density
rental housing
opportunities in this area.
The
housing instrument which can be utilised is the Social Housing
Programme, which has been used to fund developments in Milnerton,

Bothasig and Steenberg (adjacent to Marina da Gama) recently.  The
rental stock developed is managed by social housing institution

(sic).  Rentals charged vary between a minimum of approximately
R750 and a maximum of approximately R2200 (dependent on unit
size),
with rental collection rates achieved at 97.8%, 99.2% and 98%
respectively.  The sites can be made available on a long-term

lease, which means government retains the asset for sustainable
future opportunities with no expense, while it increases in value
and
is managed and maintained efficiently externally . . .
In
terms of these specific Sea Point sites, funding has already been
invested by the . . . SHRA and NASHO in order to evaluate site

feasibility for rental housing.  Proposed urban designs are
attached . . . and more information is available upon request.
This
historical site is deeply embedded in the urban fabric of Sea Point,
one of the oldest sections on (sic) Cape Town.  It
is located
between mountain and sea, creating a typical linear development along
a narrow corridor.  Commercial and high-rise
residential
buildings dominate the recreational and tourism sea front edge, with
a rich mix of high and affordable accommodation
entailing (sic)
varying forms of tenure.
The
Tafelberg school property is very well suited for residential use,
and Social Housing in particular.  It is well serviced
by public
transport and engineering services.  It is recognised that
careful thought and design are (sic) required for an
appropriate use
and response to the existing school buildings, which enjoy heritage
protection and cannot be demolish (sic) or
altered.  The
opportunity for the development of some retail and commercial uses on
the Main Road frontage should be exploited
as it has the potential to
provide some cross subsidisation for Social Housing.  Refurbishment
must also be considered for
the conversion of the existing school
buildings, potentially to community facilities.
The
site offers opportunities for a number of independent blocks that can
be developed separately over time, as well as being developed
in such
a way as to have little impact on each other spatially and
operationally.  The development can therefore arguably
take the
form of a group of independently developed projects, even if
developed at the same time by the same developer.  The
density
and height can be higher or lower, without negatively affecting the
surrounding residential fabric.
The
site on the Main Road can potentially be developed as a residential
block with retail on the ground floor, with separate access
from
other blocks.  The retail component can have a direct link to
Main Road, with shops serving pedestrian and passing vehicular

traffic.  The opportunity presents itself to locate businesses
in that location that meet certain needs of the residents such
as a
laundromat, chemist, grocery store, restaurant, etc., which could
also serve the broader community.
Being
located so close to the Main Road and accompanying public transport,
together with the lower parking requirements for social
housing, much
of the open areas between the buildings can be utilised as positive
recreational and green space for residents, rather
than for
mono-functional parking areas.  This will result in a much
higher quality environment benefiting both the residents
as well as
the surrounding residential areas.’
[143]
Finally, in drawing his conclusions, the HOD says the following:
‘
Cape
Town is one of the most segregated cities in the world.  With
this in mind, land cost is so significant in the Province
that we
could not afford to purchase market-related land which offered even
slightly similar opportunities to this one.  Were
these portions
of land to be disposed of, the opportunity cost for integration
within the borders of the City could potentially
be lost to us
forever.
Taking
cognisance of the above, the Department of Human Settlements thus
note (sic) our objections to erven 1424 and 1625, Sea Point
being
disposed of by the Western Cape Government, as it can be better
utilised to further Government objectives.
We
request that it be transferred to either the Department or to the
City of Cape Town, with a condition that it be utilised for
the
provision of affordable rental housing opportunities.’
[144]
The response to the HOD’s proposal is to be found in the
minutes of a meeting held on 15 May 2013 between the DTPW and
PDHS.
The meeting was attended by the 2 political functionaries
involved, Mr. Carlisle as MEC in charge of public works in
the
Province, and Mr. Bonginkosi Madikizela then as MEC in charge of
provincial housing.  The minutes reflect that Mr. Carlisle
was
alone while Mr. Madikizela was accompanied by representatives both of
his ministry and the PDHS, although the HOD of the latter
was not
there.  From a GIAMA perspective this was in effect a meeting of
user and custodian as contemplated in that act.
[145]
The minutes indicate that the housing officials led by Mr. Madikizela
were keen to secure provincial land for the development
of, inter
alia, social housing projects:
‘
Minister
Madikizela . . . stated that the purpose of the meeting was to
discuss land owned by . . . [the DTPW] . . . which could
potentially
be used for human settlement development, specifically for the social
housing programme.  In addition, the meeting
also aimed to
dispel any confusion emanating between the two departments regarding
the availability and suitability of land for
human settlements
development . . . ’
[146]
A representative of the PDHS, Ms. J.
Samson, advised the meeting that the Tafelberg site, and a site in
Woodstock,
[55]
could be used for housing development,
but was told there and then by Mr. Carlisle that the Tafelberg site
was not available for
housing.  It appears from the minutes that
Mr. Carlisle considered the property to be prime land that could be
sold for about
R80m.  The minutes list a number of ‘land
parcels’, some of which might be considered suitable for
housing development.
[147]
What is also clear from the minutes is that the two provincial
departments were not
ad idem
as regards the use of state owned
land for future human settlements.  To this end Mr. Carlisle
suggested that a list be drawn
up of –
(i) ‘uncontested land’;
(ii) ‘land that the two
departments agree can be used for human settlement development’;
and
(iii) ‘land that only one
department is considering for human settlement development.’
[148]
Ultimately it was agreed at the meeting that the DTPW would –
‘
compile
a list of land, indicating uncontested land, so that the two
departments can agree on what can or should be considered for
human
settlement development. [PDHS] and [DTPW] to work together to
transfer the Woodstock land.’
[149]
Notwithstanding this proposed course of action, it is apparent that
as of May 2013 the MEC (as political functionary in charge
of the
custodian department of the Tafelberg property) had decided that the
property was to be sold off on account of its high
market value, and
that there would be no further consideration as to its utility within
the Province.
[150]
Later in that month, on 23 May 2013, a report was prepared for the
Provincial Steering Committee in accordance with the aforementioned

Stage1: High Level Scoping criteria as part of the WCPDP.  The
report requested that the Provincial Steering Committee clarify
the
process and procedures pursuant to the HOD’s letter of 26 March
2013 and, in particular, to advise on the way forward
in relation to
the disposal of the so-called ‘Main Road Precinct’.  This
was understood by all concerned to be
a reference to the Tafelberg
site.  Annexed to this report was a so-called “Project
Authorization Document” in
which the disposal of the property
to the private sector through a long term lease was contemplated.
The provision of affordable
housing on the property was not amongst
the objectives listed in this annexure.
THE
EXPRESSION OF INTEREST PROCESS
[151]
In March 2014 the DTPW took its next step under the WCPDP when it
issued a bulky 50-page document entitled “Expression
of
Interest: Property Development Investment Opportunities in the Cape
Town Central City Regeneration Programme.”  For
the sake
of convenience I shall simply refer to this document as “the
EOI”.
[152]
The declared purpose of the EOI was to ‘present . . .
development and investment opportunities of four properties, released

incrementally to the market . . . for property development and
investment purposes in accordance with [certain specified] commercial

arrangements’, the details whereof were included in the
document. The four properties in question were identified as:
152.1.
The Alfred Street Complex
‘
This is a property situated in
Alfred Street in the Prestwich Precinct, linking the Cape Town CBD
and the V&A Waterfront with
an estimated total of 65 000m²
potential bulk available.  Other properties in the precinct
belonging to the [Province]
will be released in the next group or
tranche.’
152.2.
Helen Bowden Nurses’
Home Site
‘
This is a property situated in
the Somerset [Hospital] Precinct, neighbouring the V&A Waterfront
and the Cape Town Stadium with
an estimated total of 46 000m²
potential bulk available (applying a bulk factor of 3.29).  Other
properties in the precinct
belonging to the [Province] will be
released in the next tranche.’
152.3.
Top Yard
‘
Top Yard is part of the
Government Garage Precinct and is located in the Cape Town CBD less
than 500m from the National Parliament
and the Company Gardens.  The
property is currently utilised as a ground level parking facility
with tarmac surfacing.  A
total of 46 484m² (bulk factor of
4) is estimated to be the potential bulk available on Top Yard under
the new zoning Scheme.
Other properties in the precinct
belonging to the [Province] will be released in the next tranche.’
152.4.
Main Road Sea Point
‘
The Main Road Precinct is the
site of the former Tafelberg Remedial High School and is located at
355 Main Road Sea Point east;
approximately three and a half
kilometres from Cape Town’s Central Business District (CBD).
The site consists of erven
1424 Sea Point comprising a total
site area of 1.7054 hectares.  The site offers a development
yield of approximately 20 000m²
of mixed-use space comprising 12
200m² residential use, 1700 m² retail use, 700 m²
restaurant and 5000 m² business
use.  Other properties in
the precinct belonging to the [Province] will be released in the next
tranche.’
[153]
There are four important factors which emerge from the EOI.  Firstly,
the Tafelberg site was advertised for mixed use
development,
including a residential component.  Secondly, the property was
considered by the Province to fall within the
central city area for
purposes of the Regeneration Programme.  Thirdly,
notwithstanding the possibility of a residential component,
the
prospect of affordable housing is not mentioned in respect of any of
the four sites.  Fourthly, the EOI emphasized that
the Province
and the DTPW had:
‘
made
a policy decision that the [Province] will retain ownership of the
properties in order to capture the broader benefit of property

regeneration.  An outright sale of the properties is therefore
not under consideration.’
[154]
The EOI specifically asked potential interested parties to deal with
the question of socio-economic objectives:
‘
21.
What levers may be available to DTPW to implement its socio-economic
objectives set out in section 1 whilst protecting the financial

feasibility of prospective investment?  Which, if any, of these
objectives would materially impact financial feasibility?
Is
there a range of tolerance for acquiring such objectives to be met?
For example, is there a maximum percentage of
available area
that should be assigned to socio-economic objectives, such as
creating green, open spaces?
[56]
What is a tolerable range for this percentage?
22.
Would the Respondent support the pursuit of an exemption from the
Preferential Procurement Policy Framework Act, 2000
for the
anticipated procurement process to allow more flexibility in
accommodating BBBEE and socio-economic objectives?’
[57]
[155]
On 20 March 2014, the MEC (then still Mr. Carlisle) hosted an
investors’ conference in Cape Town to ‘showcase
the four
investment opportunities that the department will be making available
to interested private sector parties.’  Interested
parties
were invited to submit expressions of interest by 17 April 2014.  The
four properties referred to by the MEC are those
referred to in the
EOI.
[156]
In the founding affidavit Ms. Adonisi points out that on 17 April
2014, Ndifuna, Equal Education and a third affiliated NGO,
the Social
Justice Coalition (“SJC”) made a joint submission in the
public interest to the MEC (Mr. Carlisle), objecting
to the long-term
lease to private developers on the basis that the Tafelberg site
should be developed for mixed income housing,
particularly in the
context of the shortage of suitable, well-located state owned land
available for public housing in the inner
city.
[157]
A demand was simultaneously made of the MEC that the Regeneration
Programme in respect of the 4 properties proposed in the
EOI be
halted, in order to consult with local and national government about
utilising the land in question to address the urgent
spatial planning
and housing needs in the city.  Later the same day Mr. Carlisle
called Mr. Dustin Kramer of the SJC telephonically,
and advised him,
inter alia, that there was neither the intention nor the desire on
the part of the Province to relocate poor people
into Cape Town’s
city centre or surrounds as part of the densification of central city
housing developments.  This was
said by Mr. Carlisle to be a
‘disservice’ to poor people for whom the proposal would
not be a ‘living solution’,
although the MEC did not
spell out what he meant in that regard.  It is common cause that
Mr. Carlisle also told Mr. Kramer
during their discussion that ‘there
cannot be RDP in the City’.  This latter remark, with
undertones relating
to both race and class, was understood to be a
reference to the CBD and surrounds.
[158]
On 11 June 2014 Mr. Kramer delivered a further demand of the
Province, for the attention of the new MEC, Mr. Donald Grant,
who had
in the interim replaced Mr. Carlisle:
‘
We
demand an undertaking that he will halt any sale/lease of the land
referred to in the submission, in order to consult immediately
on
using available, including Province-owned land, for a broader plan to
deal adequately with the urgent spatial planning and housing
needs of
the city, particularly for those most vulnerable and in need.’
[159]
On 11 June 2014, the new MEC replied
to the letter of 17 April 2014 from the NGO’s and dealt with a
number of issues, not
all of which need be traversed at this stage.
In his reply, Mr. Grant did not contradict or repudiate the
earlier statements
made to Mr. Kramer by Mr. Carlisle in their
telephonic conversation of 17 April 2014
[58]
.
It can therefore be safely assumed that the official policy of
the Province at that stage was that it had no intention of

considering the relocation of poor people to central Cape Town and
surrounds and that affordable housing would not be made available
for
this purpose.
[160]
In his letter Mr. Grant also stated that the Regeneration Programme
had been set up ‘to extract maximum value from the
most
valuable inner city properties’ and thereby, through effective
and efficient management of its assets, generate income
to meet,
inter alia, its obligations to the ‘poorest of the poor’
by way of cross-subsidisation.  The process
of addressing
apartheid spatial planning was said by the MEC to be a complex matter
and needed to be done ‘in a programmatic
management and not on
a site-by-site basis.’
[161]
The MEC went on to point out that there was a vast difference between
developing housing in the CBD and developing housing
on the edges of
the metro, stating that:
‘
The
financial modelling for affordable low cost and social housing is
heavily dependent on aspects such as government subsidies,
free land
and ownership solutions.  In the inner city this modelling is
simply impossible to apply and a very different approach,
factoring
in the high cost of land, the cost and complexity of building
high-rise structures, issues of cross-subsidisation within
mixed-use,
mixed-tenure solutions and the management, maintenance and operation
of such developments, is required.’
[162]
Having earlier acknowledged that ‘the legacies of
apartheid-type spatial planning [needed] to be reversed’, Mr.

Grant concluded his letter as follows:
‘
With
this as background the [DTPW] believes it is going about its business
in a responsible manner and that our decisions and actions
with
regard to these properties, based on considerations of policy, are
not unconstitutional as you have alleged.  The Province
will
therefore continue with this work.  In doing so it will consult
with all relevant parties (including the parties to the
submission)
who may contribute constructively to realising the dream of a better
City and a better Province.’
[163]
It would have been apparent to the SJC and its alliance parties at
that stage already that the prospects of the Tafelberg
site being
redeveloped for social housing were remote, to say the least.  One
of the principal obstacles appears to have been
the insistence by the
Province that it procure fair market value for its land.  So,
for example, one sees in May 2014 a situation
where the DTPW offered
to dispose of the derelict Woodstock Hospital site to the City for
R30m in order that it could be developed
for affordable housing
purposes.  The response of the City in July 2014 to this
proposal was that the delivery of social housing
on that site would
not be viable at the selling price as proposed by the Province.
EXCURSUS:
COMMUNICARE’S RESPONSE TO THE EOI
[164]
Communicare, to which reference has already been made, is a fully
accredited social housing institution under the SHA.  On
17
April 2014 it responded to the EOI and indicated that it was of the
view that the fact that the Province was considering granting
a long
lease on the property would not affect the potential use of the
property to achieve the desired socio-economic objectives.
In
so doing, said Communicare, the state would be able to retain the
asset.
[165]
Communicare indicated that it was ‘very interested’ in
the Tafelberg site and held the view that the best use
for the
property would be a combination of social housing and market-related
rental units, with an additional component of retail
space.  It
considered that it could complete such a project within 48 months.
Mr. Hathorn SC observed that it was significant
that at this
stage a body with extensive experience in the social housing sector
considered that the property was suitable for
housing under the SHA
and that such an undertaking was economically viable.
STEPS
TAKEN BY THE PROVINCE AFTER THE EOI PHASE
[166]
In terms of cl 4.2.1.5
[59]
read with cl 6.2.1 of the WCPDP, upon
completion of the second phase (i.e. the EOI phase), a decision was
required to be made as
to which of the projects would proceed to the
implementation phase, based on the optimum use defined in respect
thereof.  In
the replying affidavit, Ms. Adonisi takes the point
that there is no evidence in the documentation made available to the
applicants
of any such decision having been made at the time by the
Provincial Steering Committee in terms of the WCPDP, as to whether
the
development then proposed in respect of the Tafelberg site (i.e.
a development on the property by a private developer under a long

term lease) should proceed.
[167]
In a late supplementary answering affidavit filed in February 2019
the Province made the allegation that Ms. Adonisi’s
conclusion
was wrong, but tendered no documentary proof of the steps
contemplated under the clause in question.  Given the
reporting
lines to the DTPW’s Accounting Officer, and Provincial and
National Treasury, it is inconceivable that there is
no documentation
supporting the bald allegation.  Rather, said Mr. Hathorn SC,
the evidence before the Court strongly suggests
that the process
under the WCPDP was simply abandoned when it became clear that the
Province elected to generate revenue in the
short term.  I
consider that counsel’s conclusion is justified on the papers
for the reasons that follow later.
THE
EDUCATION HEAD OFFICE PROJECT
[168]
In her affidavit Ms. Gooch refers to a
PPP
[60]
which the DTPW was considering in
order to facilitate the relocation of the WCED’s head office
from the Golden Acre/Grand
Parade area in the central CBD to the
Provincial Office Precinct
[61]
.
The Province says it was concerned about the high rentals that
it was paying in the mid-town buildings housing the WCED
and was
looking for other less costly options.  In the circumstances it
says a PPP presented a viable solution.  However,
by October
2014 it appeared that there were problems with the economic viability
of the proposed PPP: the capital contribution
to be made by the
Province had escalated sharply – from R210m to R540m –
and, in addition, the Provincial Treasury
was opposed thereto.
[169]
The way out of the financial squeeze was conceptualised by Ms. Gooch
and a Mr. Pillay, who was then at the helm of the Regeneration

Programme.  The idea was to sell the Tafelberg site to fund a
portion of the PPP shortfall.  Accordingly, in January
2015, the
DTPW made a submission to the Provincial Cabinet for approval to
enlist a private entity for the Education Head Office
PPP.  In
its submission the DTPW pointed out that it had been agreed with
Provincial Treasury that a capital contribution
would be made out of
the funds set aside in the Asset Finance Reserve and that ‘an
additional contribution [would] be derived
from the sale of
properties which properties would be ring-fenced for this purpose.’
[170]
In the replying affidavit, Ms. Adonisi points out that no detail was
given of the properties earmarked for the proposed sale,
and in
particular that no mention was made of the contemplated sale of the
Tafelberg property in order to fund the shortfall in
the PPP.
Further, there had not been a proper update of the Regeneration
Programme so as to include the Tafelberg and Woodstock
Hospital sites
therein after it was decided to dispose of them.
[171]
In light hereof, said Mr. Hathorn SC, the Provincial Cabinet had not
been placed in a position to re-assess the suitability
of the various
precincts in order to optimally achieve the aims and objectives of
the Regeneration Programme.  Nor, it was
argued, was the Cabinet
able to properly evaluate the benefit of continuing with the PPP in
light of the competing interest in
the Tafelberg site given, firstly,
that the PDHS had formally made it known that it required the
property for housing purposes,
secondly, that feasibility processes
had been undertaken in respect of social housing projects on both the
Tafelberg and Woodstock
Hospital sites and, most importantly, that
the opportunities for affordable housing in and around the city
centre were scarce.
THE
MARCH 2015 DECISION TO SELL THE TAFELBERG PROPERTY
[172]
In the answering affidavit, Ms. Gooch says that in March 2015 the
DTPW’s Immovable Asset Management Directorate decided
to sell
the Tafelberg property.  This decision was evidently based on
the Cabinet decision of January 2015 to finance the
shortfall in the
PPP through the sale of provincial properties.  Nothing is said
by the Province of the implementation of
the WCPDP process, and it
must be concluded that this had simply fallen by the wayside as far
as the Tafelberg site was concerned.
As Mr. Hathorn SC
stressed, there is no documentation referred to by Ms. Gooch in
support of the decision to sell the property.
Consequently, one
does not know who made the decision, when it was made or what the
terms of the intended disposal were.
All that is said is that
the sale would ‘achieve the objectives of the Urban Design
Report.’  The absence
of detail is regarded as
significant, because at that time the objection by the HOD of the
PDHS of 23 March 2013 still stood.
[173]
Having decided to sell the property,
the DTPW then purported to follow the provisions of the WCLAA.  On
23 March 2015 it procured
a valuation from an independent third party
(Appraisal Corporation), that reflected the market value of the land
at R107,3m, and
thereafter it prepared a bid document which was
published in the Government Gazette in terms of the WCLAA.  The
bid document
stipulated that only bids above the market value as
determined by an independent valuer would be considered.  It
also made
provision for a scoring system in terms whereof 90 points
would be allocated for price and only 10 points for B-BBEE
[62]
criteria.
[174]
It is clear that the tender document was then loaded in favour of
price and would have minimal regard to the interests of
Black
empowerment: it paved the way for a White buyer with deep pockets to
acquire the property and effectively put paid to any
prospect of
social housing options on the property.  The tender document is
consonant with the mantra ‘No RDP in the
CBD’ and
effectively preserves the
status quo
in Sea Point: apartheid
spatial planning would not be disturbed.
[175]
In so doing, the Province paid little attention to its constitutional
obligations to achieve land reform under s25 of the
Constitution.
And, in opting for a high value sale, it effectively
perpetuated that which its own officials and functionaries
had
repeatedly cautioned against and complained of: the inability of the
State to deliver affordable housing in and around the
CBD due to the
high cost of available land.
[176]
The cut-off date for the submission of tenders was 9 June 2015 and,
while 5 bids were received by the Province, only 2 exceeded
the
independent market valuation and they were then evaluated on the
90/10 points basis.  It would be fair to say that the
Day
School, with its offer of R135m, won the race by the proverbial
country mile and on 3 July 2015 the DTPW, acting in terms of
the
WCLAA, had little difficulty in recommending the disposal of the
property to the Day School to the PPC.  Later that month
the PPC
resolved to recommend the sale in terms of Reg 4(5) of the WCLAA
Regulations.
WITHDRAWAL
BY THE PDHS OF ITS INTEREST IN THE PROPERTY
[177]
Mr. Hathorn SC argued that the recommendation of the PPC in approving
the sale to the Day School was based on an incorrect
factual
assumption,
viz.
that the Tafelberg property was not in use,
or required for, government purposes.  This, it was said, was
because the property
was not ‘surplus’ under GIAMA.
Reliance was placed in this regard on the letter from the HOD
of 26 March 2013.
[178]
On 7 August 2015, a month after the recommendation to the PPC and
more than 2 years after the HOD’s letter indicating
his
department’s interest in the property for housing purposes, the
DTPW’s Director for Property Acquisitions, Mr.
E.P. Maytham,
formally wrote to the PDHS informing it that a decision had been made
to dispose of the property in order to create
an income stream for
the Asset Reserve Fund, to be used for the construction and
maintenance of ‘social infrastructure’.
Curiously,
the Province has never explained how the construction of an office
block in the Provincial Precinct can be regarded
as social
infrastructure.
[179]
In requesting the PDHS to formally withdraw its interest in the
property and to confirm that the DTPW could proceed with the

disposal, the following was said by Mr. Maytham:
‘
The
Tafelberg High School in Sea Point, Cape Town, was decommissioned in
June 2010 and the Property was relinquished to the DTPW
. . . as the
custodian of immovable assets for the future administration thereof.
During
2009 the Western Cape Provincial Cabinet approved the Strategic
Framework for the Central City Regeneration Programme, which
provides
the mandate to make under-performing properties available to the open
market with the intention to create an income stream
for the Asset
Reserve Fund, which will primarily be used for the construction and
maintenance of social infrastructure.
A
decision was reached by DTPW to dispose of the . . . [property] . . .
in the open market for the purposes as mentioned above.
The
disposal process is currently underway.
The
. . . Cabinet also in August 2014 endorsed the Memorandum of
Understanding . . . regarding the utilisation of Properties (sic)
in
the custodianship of the DTPW for Human Settlement Development,
whereby approval was granted for DTPW to avail certain portions
of
land to the . . . [PDHS] . . . for the said purpose.
In
view of the aforementioned the . . . [PDHS] . . . is hereby requested
to withdraw their (sic) request to avail . . . [the Tafelberg

property] . . . for human settlement development, and also to confirm
that the DTPW can proceed with the disposal of the . . .
[Property],
in order to create the necessary income for the construction and
maintenance of social infrastructure for the Western
Cape
Government.’
[180]
The response to this request (directed for the attention of Ms.
Gooch) came from the then HOD of the PDHS, Mr. Thando Mguli,
in a
letter dated 17 August 2015.  The content thereof reflects Mr.
Mguli’s obvious frustration at being confronted
with a
fait
accompli
and further demonstrates,
inter alia,
a different
understanding of the concept of ‘surplus’ under GIAMA.:
‘
I
have considered your request for the . . . [PDHS] . . . to withdraw
its interest in the abovementioned . . . [property] . . .
for human
settlement development.  Although the subject property is found
to be suitable for the development of housing to
cater for the
[PDHS’] . . . target market, I agree to your request in the
spirit of cooperation and the interest of achieving
our provincial
goals.
Unfortunately
this spirit of cooperation and sharing a common goal does not seem to
be reciprocal in our Departments’ engagements
among the rank
and file, albeit the case on paper.
For
the record, and I know that you will not be aware of it, it needs to
be stated that until now, no property that resorted under
the
custodianship of the DTPW, has been released and used for human
settlement development.  In contrast therewith, [the PDHS]
has
already transferred the custodianship of literary hundreds of
hectares of serviced sites to DTPW for educational and other

purposes.
This
event, however, presents an opportunity to refine the understanding
of how the two departments are to work together in the
use of
provincial land to realise the provincial goals.
In
response to my earlier request (dated 6 July 2015) for [the DTPW] to
identify more land that can be made available for human
settlement
development, as per the Memorandum of Understanding between our
departments, it was stated that no ‘surplus’
land (I
understand the definition of ‘surplus’ to be that the
land is not needed for provincial functions) is available
to be used
for human settlement development.  The notion that only
‘surplus’ land should be identified for human
settlement
development is flawed (sic) on the wrong assumption that human
settlement development is not a core provincial function.
It is
conceded that the needs of the other provincial departments
could
first be considered, but if a particular property is not needed for
those functions, it must be considered for human settlement

development before any other interest and before it can be classified
as “surplus” property.  Those officials
who hold
this opinion have to be assisted to fully understand the scope of the
provincial government’s mandate and that [the
PDHS] does not
have to solicit favour to get access to provincial state land, but
that human settlement development should get
equal, if not priority,
attention.  In this regard it is also disturbing that some DTPW
officials often pronounce themselves
on policy matters that are
[PDHS] prerogatives, and questioning (sic) important issues about
whether municipalities or the [PDHS]
should undertake human
settlements development.
It
is therefore my surmise (sic) that this warped understanding of
officials of the provincial mandate and the respective roles
of our
departments, is the reason for the lack of progress almost a year
since we have agreed to work together in the release of
land for
human settlements.  I think it is imperative that we clear the
obvious confusion to properly mandate our teams to
implement our
strategic agenda.’
It
is apparent from this letter that Mr. Mguli had a good understanding
of the imperatives of land reform and housing as contemplated
in ss25
and 26 of the Constitution.
THE
PROVINCIAL CABINET DECISION TO SELL THE TAFELBERG SITE
[181]
After obtaining the recommendation of the PPC and having persuaded
the HOD of the PDHS to forego any interest in the property
for
housing purposes, the DTPW believed it was in a position to take the
envisaged sale to the Day School to the Provincial Cabinet
for
approval.  Accordingly, and on 11 November 2015, the MEC (then
still Mr. Grant) made a submission to the Cabinet, to which
I shall
refer as “the November 2015 Cabinet submission”.
[182]
The purpose of the November 2015
Cabinet submission was to obtain approval
[63]
for the disposal of the property to
the Day School in the sum of R135m, which as we have seen exceeded
the assessed market value
by some R28m (i.e. by more than 25%).  In
broad terms the November 2015 Cabinet submission dealt with the
purpose of the submission
– listing only two provincial
strategic goals
[64]
–
and further provided
background to the deal, motivation for the disposal and contained
submissions with regard to the anticipated
use of the proceeds of the
sale.
[183]
In relation to the ‘surplus’ issue, the submission
contains the following by way of background:
‘
6.
In June 2010, the school was relocated to Bothasig, and since then
the buildings stood vacant.  Subsequent to the closure
of the
school, the Properties were
relinquished
to
the Department of Transport and Public Works: Immovable Asset
Management (DTPW: IAM) for the future administration thereof.’

(Emphasis added.)
[184]
The submission also deals with
achieving the professed objectives of the Urban Design Report of 2011
(“the UDR”), which
flowed from the Regeneration
Programme
[65]
and notes that the decision to dispose
of the properties was reached by the DTPW: IAM in March 2015.
[185]
Cabinet was informed by the MEC of certain of the provisions of GIAMA
which were considered applicable in the circumstances,
including the
following: -
‘
22.1
An immovable asset becomes surplus to the user if it does not support
its service delivery objectives at an efficient level
and if it
cannot be upgraded to that level . . .
22.4
The Custodian, when it disposes of any immovable asset, must consider
whether the asset cannot be used in relation to the social

development initiatives of government; and
22.5
Whether it cannot be used in relation to government’s
socio-economic objectives including the alleviation of poverty,
job
creation and wealth distribution.’
[186]
The submission goes on to record that ‘(a)ll Government
Departments including the Department of Rural Development and
Land
Reform were consulted before a decision to dispose of the Properties
was taken.’  As will be seen later, this allegation
is
incorrect in that the National Department of Human Settlements was
never consulted in circumstances where it claimed it was
reasonable
to do so.
[187]
The November 2015 Cabinet submission also recorded the exchange of
correspondence in August 2015, and referred to the earlier

correspondence between Messrs Maytham and Mguli, as follows:
‘
24.
Although the [PDHS] requested that the Properties be made available
to them for integrated sustainable human settlements, an
agreement
was reached between the DTPW and the [PDHS] that the [PDHS] withdraw
the said request, in order to allow the DTPW to
proceed with the
disposal of the Properties, to create the necessary income for the
construction and maintenance of social infrastructure
for the Western
Cape Government . . .
25.
The Properties are therefore not required for any government purpose
and can be disposed of.’
It
must be said immediately that the passages in Mr. Mguli’s
letter to which I have already referred hardly sustain the suggestion

to Cabinet that an amicable agreement had been concluded between the
two departments.
[188]
Finally, the submission dealt at length with the importance of the
best value for money principles in GIAMA, and there was
a thorough
exposition of the various offers put up to the DTPW.  On the
evidence as presented to the Cabinet, there can be
little doubt that
it was a very good deal from a commercial point of view.  On
this point Mr. Hathorn SC submitted, however,
that the decision to
sell the Tafelberg site was predicated on a policy which saw the
disposal of valuable land close to the CBD
for maximum financial gain
to the exclusion of other relevant considerations: it was argued that
the Province had incorrectly assumed,
on the basis of flawed
financial modelling, that it was not possible to provide affordable
housing in the inner city area.
[189]
In the result, the Provincial Cabinet approved the sale of the
Tafelberg site to the Day School on 11 November 2015, and on
20
November 2015 the MEC accepted and signed the Day School’s
offer.  On 24 November 2015 the Day School was informed
of the
outcome of the tender process and notified that the confirmation of
the offer was subject to a further statutory process,
i.e. a 21-day
period in terms of s3(2) of the WCLAA, in terms whereof interested
parties could make written submissions in respect
of the proposed
disposal.  To this end, on 11 December 2015, the DTPW published
notices of intention to dispose of the property
in terms of the said
section and called upon all interested parties to submit such written
representations.
[190]
After the expiry of the prescribed 21-day period, the Province
notified the Day School on 14 January 2016 that the sale had
been
confirmed and called for the 10% deposit payable in terms of the deed
of sale.
ALLEGATIONS
OF FLAWED PUBLIC PARTICIPATION AND THE MAY 2016 INTERDICT
[191]
In the founding affidavit Ms. Adonisi observes that Ndifuna only
became aware of the Cabinet’s decision to dispose of
the
property late in January 2016.  After taking legal advice
Ndifuna addressed a letter to the Premier and the MEC, requesting

reasons for the decision to declare the Tafelberg site as surplus in
terms of GIAMA and to dispose of it.
[192]
The request for reasons was based on s5(1) of the Promotion of
Administrative Justice Act, 3 of 2000 (“PAJA”).
On
1 April 2016 Ms. Gooch responded on behalf of the Province and
articulated its position referred to earlier and which
has remained
consistent throughout: that the property became surplus by operation
of law in June 2010 and that PAJA was therefore
not applicable.  Ms.
Gooch went on to say that, notwithstanding the alleged
inapplicability of PAJA, the DTPW would nevertheless
furnish its
reasons as soon as was reasonably possible.  Ms. Adonisi says
(and it is not disputed by the Province) that by
the time the RTC
application was launched, no such reasons had been furnished.
[193]
RTC and Ndifuna held the view that the disposal process was flawed,
both procedurally and substantively, and they decided
to commence
litigation to address the position.  In particular, RTC held the
view that the Province had failed to adhere to
s3 of the WCLAA and
that the public participation process initiated by the DTPW, through
its notice of 15 December 2015, was fundamentally
flawed.  In
the result substantially the same applicants in the RTC application
launched an urgent application on 11 April
2016 to interdict the
transfer of the property to the Day School, pending a renewed public
participation process.
[194]
The Province accepted that the 15 December 2015 notice did not comply
with s3 of the WCLAA, in that it had not been published
in all of the
three languages of the Province – there was no publication in
isiXhosa.  Accordingly, on 5 May 2016 an
order was granted by
Dolamo J, by agreement between the parties, to the following effect:
194.1. The notices published in terms
of s3 of the WCLAA were reviewed and set aside;
194.2. The MEC was directed to publish
fresh notices in terms of s3 within 10 days of the date of the order;
194.3. Within one month from the close
of the commentary period specified in such publication, the MEC was
directed to notify the
applicants in writing of the Cabinet’s
decision regarding whether or not to resile from the contract of sale
with the Day
School and to furnish written reasons for its decision
should that decision be not to resile from the contract;
194.4. If the Cabinet decided not to
resile from the contract, the applicants could, within one month of
receipt of the written
notification from the MEC, institute
proceedings for judicial review of that decision or any other action
or decision by the Province;
194.5. The Province and the Day School
undertook not to give or take transfer of the property until the
expiry of two months after
receipt by the applicants of the written
notification of the Cabinet’s decision as aforesaid.
THE
PROVINCE’S REVISED FINANCIAL MODEL
[195]
On 19 May 2016 fresh notices in relation to the proposed disposal of
the property were published by the DTPW, with the date
for
submissions fixed as 9 June 2016.  In the interim the sale of
the property had become a matter of significant public interest,
with
various commentators on social and political issues and members of
the public pointing to the failure of the Provincial government
to
deal with the legacy of apartheid spatial planning in the city
centre.  On 18 July 2017, the Province reported that
approximately
5000 submissions had been received by the DTPW in
response to its notice of 9 June 2016.  As a result, it said the
Cabinet
was not able to consider the written representations within
the time period stipulated in the order of Dolamo J.
[196]
On 29 July 2016, the Cabinet determined that, in light of the wide
range of comments that had been submitted to it, it was
not in a
position to come to a view in regard to whether to resile from the
sale or not.  It accordingly requested the DTPW
to secure the
preparation and presentation of a financial model with respect to
social housing options on the Tafelberg site.
[197]
The DTPW then prepared a financial model in relation to such social
housing options and fresh notices were thereafter published
inviting
comments on such model during November 2016.  Ndifuna and NASHO
both submitted comments on the Province’s financial
model, as
well as alternative models for mixed-use developments, with
cross-subsidisation for purposes of feasible social housing
as part
of the proposed development on the site.  A total of 37 comments
were received in relation to the proposed financial
model.
CABINET’S
DECISION NOT TO RESILE FROM THE SALE
[198]
After the conclusion of an extended public participation process, the
Cabinet took a decision on 22 March 2017 under the WCLAA
not to
resile from the sale of the Tafelberg site to the Day School.  Prior
to taking that decision, provincial officials
and the legal adviser
to the Province in the Office of the Premier made a presentation to
the Cabinet.  Although the substance
of the decision was only
formally conveyed to Ndifuna on 7 April 2017, a posting on the
Province’s website on 22 March 2017
made this fact public.  I
shall refer to the contents of that posting as they usefully
summarise the decision.
[199]
In the posting it was announced by the spokesperson for the Cabinet
that the Woodstock Hospital site would be used for affordable
housing
‘within a mixed-income, mixed-use context’
.
It
was further said that the Province envisaged developing the Helen
Bowden site together with the larger Somerset Precinct, and
that in
so doing consideration would be given to ‘the maximum number of
affordable housing units [that could] be included
in [such]
development, in a way that is viable and rational.’
[200]
In regard to the Tafelberg site the posting attributed to Cabinet the
following by way of background to its decision not to
resile.
‘
Cabinet
further deliberated on whether or not to resile from the sale of the
Tafelberg site, having received presentations from
various
departments and the full set of public comments the process has
generated to date.
Cabinet
accepted that a holistic approach to the utilisation of provincial
assets, and the methods by which the Province is pursuing
its
legislative obligations and policies in that regard, is preferable to
an ad hoc site by site determination.
Cabinet
accepted that it cannot achieve all its strategic objectives on every
single site.
On
the basis of what was presented to Cabinet, including the current
pipeline for affordable housing in the Metro, the two aforementioned

decisions, legal advice from senior counsel, affordability risks,
fiscal constraints in the current economic climate, Cabinet resolved

that the Tafelberg site is not ideally suited to affordable housing,
especially as the state subsidy cannot be utilised there under

current national policy . . .’
[201]
The ‘state subsidy . . . under current national policy’
upon which the Cabinet said it was unable to rely, is
a reference to
the subsidy which may be procured from National Government under the
SHA in respect of an area declared as a ‘Restructuring
Zone’
for purposes of erecting social housing projects.  The posting
continues as follows –
‘
The
[SHA] requires an area to be declared as a Restructuring Zone in
order for a Restructuring Capital Grant to legally be released
by
national government, for the subsidisation of social housing units.
These
Restructuring Zones are designated by the National Minister of Human
Settlements, following identification by a municipality.
The
National Minister must publish the declaration in the Government
Gazette.
Without
this declaration, the relevant national subsidy cannot legally be
provided for the building of social housing units, and
a financial
model would need to be developed for viable social housing in the
absence of a government subsidy.  This may be
possible given the
size of the Helen Bowden property, and the scope this provides for
cross subsidization.
Seapoint
(sic) where the Tafelberg property is located, also falls outside of
a Restructuring Zone.  This is as per the advice
of legal
counsel to Cabinet, which was requested following this risk being
pointed out during the course of public participation
on the
Tafelberg site . . .’
[202]
Turning to the Cabinet decision itself, the following is recorded:
‘
1.
Having taken into account the comments submitted out of the public
participation processes applied in this matter to date, along
with
the recommendation of the custodian, the legal advice received and
the presentations by various officials, the Cabinet considered
the
following factors to be material during the course of its
deliberations on whether or not to resile from the Tafelberg sale

agreement:
1.1
The current proposed and future
initiatives being undertaken by the DOHS in relation to the
progressive realisation of the right
to adequate housing by the
citizens of the Western Cape, and specifically the pipeline of 40,000
affordable housing opportunities
reported to cabinet by DOHS in this
regard.  In relation to social housing, specifically, the
pipeline includes 10810 units
at a cost of R1, 2 billion over the
next 10 years in the metro and 14008 units at a cost of R1, 57
billion in the non-metro area
of the Western Cape.
1.2
The Memorandum of Understanding
between [PDHS] and the [DTPW], and the result thereof, i.e. the
identification of 18 parcels of
land by [the PDHS] for human
settlement purposes, including but not limited to land within the
City of Cape Town.
1.3
The prior decisions of Cabinet
on 22 March 2017 in relation to the proposed use and/or disposal of
the Woodstock Hospital site and
the Helen Bowden Home site (both
within the metro) as contained in the presentation by [the DTPW] in
this regard.  More specifically
the request for a Cabinet that
any proposed disposal and/or use of the Woodstock site (in whole or
in part) be referred to Cabinet
so as to enable it to ensure that
affordable housing is best achieved on that site given its locality
and size.  Similarly
with respect to the Green Point Helen
Bowden site, that any RFP that is developed contain within it the
requirement for the maximum
quantum of affordable housing as will
make the development of the site viable.
1.4
The identified legal risks in a
social housing development under the auspices of the
Social Housing
Act on
this site currently, including, inter alia:
1.4.1
The legal advice obtained from senior counsel pertaining to the
comments made by the Phyllis Jowell Jewish Day School, in
relation to
the definition of a ‘Restructuring Zone’ in the
Social
Housing Act, read
with the National Minister’s designations and
the City’s currently identified Restructuring Zones.  Counsel’s

advice is that the Tafelberg sites does not currently fall in such a
zone as defined, rendering the availability of the restructuring

capital grant unavailable to any social housing institution for a
project on that site currently.  The social housing proposals

received to date as part of the public participation process presume
a restructuring capital grant is available.  Cabinet
notes that
the National Minister may be approached to amend the Restructuring
Zone designations but, as of 22 March 2017, counsel’s
advice is
that Sea Point does not fall within such a designated area.
1.4.2
That the current income bands
and associated grants applicable to social housing projects are in
the process of amendment.  Such
amendments have not, to date,
come into operation.  Necessary legislative amendments, to
enable any social housing project
in Sea Point or Green Point to
benefit from a restructuring capital grant and increased income
bands, are required and probable
but as of the date of this Cabinet
decision, neither of the necessary suite of amendments is in
operation.
1.5
Whilst Cabinet accepts that
social housing is notionally an option on any piece of land owned by
the Western Cape Government, in
addition to what has been set out
above, the value of the land which has been achieved in this sale,
the high construction costs
acknowledged in the public participation
process, the acknowledgement out of the public participation process
that extensive cross-subsidisation
is required to render the project
financially feasible and the inherent land use restrictions which
apply to this site, including,
inter alia, heritage and zoning
requirements, render this specific site sub-optimal for social
housing.
1.6
The loss of injection of revenue
of R135 million earmarked for other infrastructure required for the
provincial government, in a
climate of fiscal austerity and under a
direct instruction from the National Treasury to optimise the use of
its assets for, inter
alia, revenue-raising measures.’
[203]
I pause to mention at this stage that the question of the
availability of a restructuring grant and the consent and
co-operation
of the National Minister were evidently critical
components of the Cabinet decision.  These aspects were
addressed fully by
counsel in argument and I shall revert thereto in
due course.
INVOLVEMENT
OF THE NATIONAL MINISTER
[204]
In the heads of argument filed on behalf of the National Minister,
the involvement of that department of state at various
junctures in
the process of the disposal of the Tafelberg site is traversed.
Suffice it to say at this stage that on 30 March
2017 the
National Minister formally entered the fray, when she wrote to the
Province emphasising the national objective that had
to be achieved
through the development of the property for social housing purposes.
[205]
Having articulated the express intention to pursue such development
in line with the Social Housing Policy and the SHA, the
National
Minister explicitly invoked
s5
of IGRFA, stating the following:
‘
2.
Having followed the public discourse and engagement between the City
of Cape Town, the provincial government and stakeholders,
I believe
that there is a national objective that can and must be achieved
through the development of the property by providing
social housing.
In this regard, I intend to pursue the development of social
housing in line with the Social Housing Policy
and [the SHA].
Accordingly, I hereby invoke the
Intergovernmental Relations
Framework Act, 2005
in particular
section 5
for this purpose.  Kindly
provide the details of the official in your official (sic) that may
officially engage with my office
on this matter.’
[206]
This intervention by the National Minister drew a swift response from
the erstwhile Premier, Ms. Helen Zille, who, on 5 April
2017,
challenged the National Minister’s basis for asserting her
department’s entitlement to develop social housing
on the
property, as well as the basis upon which the National Minister
sought to challenge the Province’s decision not to
resile from
the sale.  While appearing to agree to engage with officials
from the DHS in the interests of co-operative governance
in relation
to the sale of the property, the Premier took issue with the
applicability of IGRFA:
‘
5.
As regards your invoking of the [IGRFA] and in particular
section 5
thereof, it is unclear as to the basis upon which you do so.  This
notwithstanding, the Provincial Government will, in the
interests of
co-operative governance have no difficulty engaging with you in
respect of the decision that it has taken in respect
of the disposal
of the property, the reasons for its decision and the basis upon
which you disagree with the decision and assert
otherwise.  Ms.
Jacqui Gooch, our HoD in the [DTPW] (the current Custodian of the
land in question) and Fiona Stewart in our
legal services department
are the relevant persons to whom any future correspondence and/or
requests for engagement on this issue
may be addressed.’
[207]
In a letter dated 24 April 2017 the State Attorney, Pretoria
responded on behalf of the National Minister and recorded that
it
appeared to their client that the Premier had accepted the National
Minister’s proposal to conduct an intergovernmental
dispute
resolution process, in order to resolve the dispute concerning the
March 27 decision not to resile from the disposal of
the property.
The Premier was invited to agree to a court order referring the
dispute for resolution in terms of an intergovernmental
process, and
regulating the further conduct of the matter in terms of the proposed
draft order between the parties to the interdict
proceedings in the
application brought by Ndifuna.
[208]
The following day the National Minister replied and emphasised that
she had to act in accordance with the provisions of
s3
of the SHA, as
well as
s3
of the
Housing Act, and
that she was accordingly obliged
to ensure that social housing prerogatives were achieved and that the
relevant legislation, regulations
and policies were complied with by
all parties.
[209]
In relation to the challenge by the
Premier as to the basis upon which
s5
of IGRFA had been invoked, the
National Minister identified the following issues which she alleged
would be subject to resolution
in terms of that act as
intergovernmental disputes:
[66]
209.1. Whether or not the Province’s
decision to sell the property to the Day School complied with
s 5
of
GIAMA;
209.2. Whether or not the Province’s
decision to sell the property to a private entity disregarded its
duty to provide social
housing in terms of the SHA;
209.3. Whether or not the reasons
advanced by the Province were rational
vis-a-vis
the
constitutional and legislative requirements to provide for social
housing; and
209.4. Whether or not the property
fell within a restructuring zone, and if it did not, whether it was
rational for the Province
not to have approached the National
Minister for a designation declaring it to be a restructuring zone
which would advance the
obligation to provide social housing.
[210]
On 11 May 2017 the Premier replied to the National Minister stating
that IGRFA could not be utilised to resolve a dispute
which involved
a private entity, in this case the Day School, and that the Province
was, in any event,
functus officio
and its decision could only
be set aside by a court of law.
‘
5.
In order to determine whether the matter is justiciable, and hence
qualifies as an intergovernmental dispute, one must enquire
whether
the matter is of such a nature that it would be competent to approach
a court to decide the outcome by way of a competent
order.  It
is, in other words, not enough for a sphere of government merely to
raise concerns about a decision made by another
sphere of government.
While such concerns may of course be raised, and whilst there
may be consultation about such concerns
as envisaged by
s5
of the
IGRFA, no intergovernmental dispute results from this and chapter 4
of the IGRFA accordingly is not triggered.’
[211]
In the meanwhile (and on 2 May 2017) the State Attorney, Cape Town
(acting for the Premier) replied to the State Attorney,
Pretoria’s
letter of 24 April 2017 on behalf of the National Minister.  In
that letter it was noted that the Premier
denied that she had
accepted the National Minister’s proposal to hold an
intergovernmental dispute resolution process in
order to resolve the
alleged intergovernmental dispute.  It was said that the Premier
relied on the following reasons:
211.1. The decision taken by the
Provincial Cabinet not to resile from the sale fell within its
exclusive competence and not that
of the National Minister;
211.2. The Provincial Government was
functus officio
and not at liberty to change the decision at
the whim of the National Minister;
211.3. The Provincial Cabinet’s
decision was to confirm a contract with a private party, which was
precluded from participating
in the intergovernmental resolution
process, but nonetheless had rights that would be affected thereby;
211.4. Should the Minister persist in
her challenge to the Province’s decision, she was required to
bring an application to
review same.  It was further stated that
the Province would in any event adopt the stance that the National
Minister had no
standing to do so, as she had no functional
competence in relation to the decision taken.
The
letter further indicated that the Province remained amenable to
engage with the National Minister, in the interests of co-operative

governance, in relation to resolving the issues identified by the
National Minister in her letter of 25 April 2017.
[212]
That then concludes the contextual and historical setting to the two
applications upon which the Court is required to adjudicate
this
matter.  I turn now to consider the approach to be applied in
considering the applications for review of the impugned
decisions.
THE
CONTROL OF PUBLIC POWER UNDER PAJA OR THROUGH THE APPLICATION OF THE
DOCTRINE OF LEGALITY
[213]
There are two pathways to judicial control of state power vested in
the Constitution.  The primary route available to
litigants
wishing to assert the right to administrative justice under s33 of
the Constitution, is via PAJA, which requires a decision
to
constitute administrative action before an applicant has the
requisite
locus standi
.  The second route is reserved for
the exercise of public power which does not arise from administrative
action: it is based
on the principle of legality.
[214]
In
FUL
[67]
Brand JA analysed the two avenues,
reviewed the authorities and summarized the position as follows:
‘
[20]
The domain of judicial review under PAJA is confined to
‘administrative action’ as defined in s1 of the Act.  The

definition starts out from the premise that ‘administrative
action’ is -
“
any
decision taken, or any failure to take a decision, by . . . a natural
or juristic person . . . when exercising a public power
or performing
a public function in terms of an empowering provision, which
adversely affects the rights of any person and which
has direct,
external legal effect . . .”’
[215]
After considering the relevant jurisprudence in relation to the
non-reviewability of decisions regarding the institution of

prosecutions, the learned Judge of Appeal continued”:
‘
[27]
. . .
(d)
Against this background I agree . . . that decisions to prosecute and
not to prosecute are of the same genus, and that, although
on a
purely textual interpretation the exclusion in s1(ff) of PAJA is
limited to the former, it must be understood to incorporate
the
latter as well.
(e)
Although decisions not to prosecute are - in the same way as
decisions to prosecute - subject to judicial review, it does not

extend to a review on the wider basis of PAJA, but is limited to
grounds of legality and rationality.
[28]
The legality principle has by now become well established in our law
as an alternative pathway to judicial review where PAJA
finds no
application.  Its underlying constitutional foundation appears,
for example, from the following dictum by Ngcobo
J in
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) para 49:
“
The
exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality,
which is part
of that law.  The doctrine of legality, which is an incident of
the rule of law, is one of the constitutional
controls through which
the exercise of public power is regulated by the Constitution.”
[29]
As demonstrated by the numerous cases since decided on the basis of
the legality principle, the principle acts as a safety
net to give
the courts some degree of control over action that does not qualify
as administrative under PAJA, but nonetheless involves
the exercise
of public power.  Currently it provides a more limited basis of
review than PAJA.  Why I say “currently”
is because
it is accepted that “[l]egality is an evolving concept in our
jurisprudence, whose full creative potential will
be developed in a
context-driven and incremental manner” (see
Minister of
Health NO and Another v New Clicks SA (Pty) Ltd and Others (Treatment
Action Campaign and Another as Amici Curiae)
2006 (2) SA 311
(CC)
para 614 . . .).  But for present purposes it can be accepted
with confidence that it includes review on grounds of irrationality

and on the basis that the decision-maker did not act in accordance
with the empowering statute (see
Democratic Alliance and Others v
Acting National Director of Public Prosecutions and Others
2012
(3) SA 486
(SCA) paras 28-30).’
[216]
Mr. Hathorn SC referred the Court to
the decision of the Supreme Court of Appeal in
Scalabrini
[68]
which, in my view, provides a useful
summary of the manner in which a court might approach a legality
review.  In that matter,
Schippers AJA observed that the
decision regarding closure of the refugee reception centre in
question was not reviewable under
PAJA, but that it might
nevertheless be assailable under the doctrine of legality.
‘
The
standard of review
[27]
The appellants accept, as they must, that the question whether a
refugee reception office is necessary for achieving the purposes
of
the [Refugees] Act is quintessentially one of policy.  It
concerns the manner in which the state determines how it will

discharge its international-law obligations contained in the Act.
The number and locality of refugee reception offices involve
an
assessment of the need for such facilities; the number of refugee
reception officers, refugee status determination officers
and other
staff required; and issues relating to administrative effectiveness
and efficiency, budgetary constraints, and policies
of the
Department.
[28]
Thus, a decision to close a refugee reception office in terms of
s8(1) of the Act constitutes executive rather than administrative

action, and is not subject to PAJA.
[29]
In exercising his s8(1) power, the Director-General is nevertheless
constrained by the constitutional principle of legality,
namely that
“the exercise of public power is only legitimate where lawful.”
Consequently, the impugned decision
falls to be reviewed and
set aside on the basis of the legality principle if it is not
rationally related to the purpose for which
the power was given; if
the decision-maker failed to act in accordance with the empowering
provision; if the decision-maker’s
failure to consider a
relevant factor had an impact on the rationality of the entire
process; or if the decision breaches the Constitution.’

(Internal references omitted.)
[217]
The review of a decision, as defined, under PAJA on the other hand
must, firstly, meet the jurisdictional requirement of administrative

action, as defined, and then, the impugned decision must fall within
the ambit of the reviewable errors or irregularities listed
in s6(2)
of PAJA.
THE
REVIEW GROUNDS RELIED UPON BY THE APPLICANTS
[218]
As will appear from the relief sought in the draft orders set out at
the beginning of this judgment, there is a fair degree
of overlap
between the initial review brought by RTC and the National Minister’s
application filed subsequent thereto.  With
reference to RTC’s
draft order the grounds of review may be articulated as follows.
[219]
Firstly, RTC attacks the designation in June 2010 of the Tafelberg
site as ‘surplus’ in terms of GIAMA.
[220]
Secondly, it attacks the surrender by the erstwhile GIAMA users (WCED
and PDHS) to the DTPW, which enabled the latter as custodian
to
embark of a process of disposal of the property under the WCPDP, the
Regeneration Programme and ultimately the WCLAA to a private
party,
thereby eschewing an intention to retain ownership of the property
for use as an affordable housing project.
[221]
Thirdly, it complains that the decision of March 2015 to make the
property available for acquisition on the open market, through
a
tender process which was intentionally loaded in favour of price,
resulted in a scarce resource (state owned land close to the
CBD)
being lost for the development potential for affordable housing while
the state retained ownership of the asset.
[222]
Fourthly, RTC seeks to impugn the decision of the PDHS in August 2015
to (albeit reluctantly) relinquish its claim to use
of the property
for housing purposes and its initial objection to the sale thereof.
It argues that this concession by the
PDHS materially
contributed to the view of the Cabinet in November 2015 that there
were no obstacles under GIAMA to the sale of
the property.
[223]
Fifthly, there is the Cabinet decision itself in November 2015 in
which it was decided to dispose of the property to the Day
School
under the WCLAA and to conclude a contract of sale with the Day
School.
[224]
Finally, there is the March 2017 Cabinet decision not to resile from
the sale.  RTC claims that this amounts to no more
than an
affirmation of the November 2015 decision.
[225]
As I understood Mr. Hathorn SC’s argument, RTC did not press
for relief on the basis of the first 4 grounds of review
set out
above.  The focus of the case, said counsel, was the
reviewability of the November 2015 decision to sell the property,

coupled with the March 2017 decision not to resile from that sale.  I
am in agreement with this concession by counsel: if
these 2 decisions
are set aside for the reasons advanced by RTC, it follows that the
Province will have to go back to the drawing
board and take decisions
afresh based on the Court’s evaluation of the earlier
components of the sale process.
[226]
In addition to seeking review of these various decisions, RTC
challenges the validity of Reg 4(6) and the proviso in Reg 4(1)
of
the WCLAA Regulations, published in October 1998, on the basis that
they are unconstitutional and invalid.  It says that
this
challenge is a stand-alone ground which would void the decision in
November 2015 to sell the property.
DID
THE DECISIONS TO SELL AND NOT TO RESILE FROM THE SALE AMOUNT TO
ADMINISTRATIVE ACTION?
[227]
The Province and the Day School adopt the stance that the first four
decisions listed above do not constitute administrative
action under
PAJA, and contend, in any event, that any such reviews are
time-barred under the 180-day period prescribed by s7 of
PAJA.  Those
parties also take the view that the only relevant decision is that
taken by Cabinet in March 2017.
[228]
As I have said, Mr. Hathorn SC accepted in argument that the first 4
decisions might be set to one side for purposes of review,
and that
the decisions to sell and not to resile should constitute the focus
of the Court’s decision.  I understood
counsel to say that
this did not imply that the first four decisions were legally
irrelevant – they were important and necessary
steps that were
taken in the process of coming to the two reviewable decisions.
[229]
Although both the Province and the Day School take the point in their
respective heads of argument that the decisions, firstly,
to sell and
later, not to resile from the contract of sale, did not constitute
administrative action under PAJA, the point was
not strenuously
advanced in argument by Mr. Fagan SC, while Mr. Farlam SC readily
conceded that they were.  In my view the
concession was well
made as the applicable authorities are clear on this point.
[230]
The judgment of Nugent JA in
Grey’s
Marine
[69]
is authority for the more general
principle that decisions by public functionaries in relation to the
disposal of rights in state-owned
land constitute administrative
action.  The case in question involved a ministerial decision to
conclude a lease in respect
of state-owned land in Hout Bay harbour.
In coming to his conclusion the learned Judge of Appeal was
guided by the earlier
decision of the Supreme Court of Appeal in
Bullock,
[70]
in which Cloete JA held that the
granting of a servitude over state land constituted administrative
action.
[231]
In both of those cases (as in the present instance) the authorities
adopted the stance that the relevant ministerial conduct
was no more
than a policy decision, which did not constitute administrative
action.  The argument here seems to lose sight
of the fact that
the Province purported to act under the WCLAA and its Regulations,
and that after concluding the sale it followed
the public
participation process mandated under Reg 4.  It is axiomatic
that such a process had to adhere to the principles
of procedural
fairness and the fairness of that process would stand to be evaluated
under s33 of the Constitution and PAJA, the
statute passed to protect
the right to fair and just administrative action under the
Constitution.  Hence, when it was claimed
by RTC that the public
participation process did not comply with the regulations (in that
one of the relevant notices was not advertised
in isiXhosa), the
Province did not quibble and forthwith agreed to the terms of the
interdict application and a revised and extended
public participation
process.
[232]
In
Military
Veterans
[71]
the Constitutional Court cited
Grey’s
Marine
with approval and
confirmed that the definition of administrative action in PAJA
embraced the following seven components:
232.1. A decision of an administrative
nature;
232.2. By an organ of state or a
natural or juristic person;
232.3. Exercising a public power or
performing a public function;
232.4. In terms of any legislation or
an empowering provision;
232.5. That adversely affects rights;
232.6. That has a direct, external
legal effect; and
232.7. That does not fall under any of
the listed exclusions in the definition of administrative action in
PAJA.
[233]
Following
Grey’s Marine
and
Military Veterans
there can be little debate that the decisions to sell and not to
resile from the sale constitute administrative action.  The

decision to sell was made by the Cabinet on the advice of the MEC, in
the exercise of public power conferred by legislation, in
the course
of administering state property
viz.
the WCLAA and the
regulations promulgated pursuant thereto.  Further, the decision
was made with immediate and direct consequences
for the Day School
and had the further effect of permanently excluding the use of the
property by the State for the benefit of
the general public, as was
the case in
Bullock.
[234]
When the Cabinet decided in March 2017 not to resile from the sale,
it noted that:
‘
(i)t
was of the view that a decision to uphold the contract of sale is
rational, prudent and appropriate, and accordingly decides
not to
resile from the current contract of sale . . .’
[235]
The language of the second decision is very much that of an
administrative decision affirming a similar prior decision, in

response to a process where the public was invited to persuade the
self-same decision-maker that its earlier decision was wrong.

Further, in the answering affidavit Ms. Gooch says (in regard
to the March 2017 decision not to resile) the following:
‘
(T)he
correct question is whether it was reasonable or irrational for the
[Province] to have decided to dispose of the Tafelberg
Properties to
[the Day School], for that is the relevant administrative action.’
[236]
Whichever way one looks at it (with the November 2015 decision as
preliminary and the March 2017 decision as final, or with
the latter
as an affirmation of a decision already taken), both decisions are
components of an administrative process governed
by legislation and
regulation, which sought to dispose of state-owned property to the
benefit of the Day School, and to the detriment
of members of the
public who had an interest in the utilisation of the property for
affordable housing.  Manifestly then,
the decisions were subject
to s33 of the Constitution and the provisions of PAJA.
[237]
There is a persistent refrain by the Province and the Day School,
both in the answering papers and the heads of argument (which
was
persisted with in argument before us) as to the polycentricity of the
Cabinet’s decision to sell the property, and a
call on the
Court to exhibit due judicial deference in circumstances where the
decision-maker was best placed to decide how to
manage public
resources.  In the answering affidavit, for instance, Ms. Gooch
says the following at paras 28 -29:
‘
Decisions
resulting in the disposal of assets for the purposes of raising
revenue are complex and polycentric and made on the basis
of an
assessment of many factors . . . The decision as to which assets
should be sold is however pre-eminently one for the [Province]
to
make.  It is a decision about the best application, operation
and dissemination of public resources and about how public
resources
ought to be drawn upon and reordered.’
[238]
The principle of judicial restraint in
cases involving policy-based determinations is well established in
our constitutional jurisprudence.
[72]
But, the application of the
principle does not imply that a decision is not administrative action
as defined under PAJA.  Rather,
it governs the approach to be
adopted by a court in assessing whether (and how) it might interfere
in any such decision.
[239]
In the result, in my view, there can be no doubt that the decision to
sell the property, and the subsequent decision not to
resile, both
constitute administrative action and that the Province was bound to
observe the provisions of PAJA in the steps that
it took to dispose
of the Tafelberg property.
THE
CHALLENEGE TO THE LEGALITY OF THE WCLAA REGULATIONS
[240]
In the section of this judgment
dealing with the approach to the vindication of socio-economic
rights, I stressed the importance
of participatory democracy as a
basis for affording citizens the opportunity to hold government to
account, through litigation,
in their quest to advance
constitutionally guaranteed rights.
[73]
As
Mazibuko
[74]
emphasizes, the proper and adequate
disclosure of information by the authorities is critical to enable
interested parties to assess
whether, and how, they might consider
advancing the vindication of such rights.
[241]
In their heads of argument, counsel
for RTC referred to the decision of Goosen J in
Borbet
[75]
in regard to the issue of public
participation.  With particular reference to the judgment of the
Constitutional Court in
Doctors
for Life
[76]
Goosen J makes the following general
comment in regard to the meaning and purpose of public participation
within the local authority
sphere:
‘
[19]
. . . The obligation to encourage public participation at
local-government level goes beyond a mere formalism in which public

meetings are convened and information shared.  The concept of
“participatory democracy” as envisaged by the
Constitution
requires that the interplay between the elected
representative structures and the participating community is
addressed by means
of appropriate mechanisms.  It is this
relationship to which the Constitutional Court speaks when it states
that there must
not only be meaningful opportunities for
participation, but also that steps must be taken to ensure that
people have the ability
and capacity to take advantage of those
opportunities.’  (Internal references omitted.)
[242]
And, while that case involved issues at the level of local
government, I consider that the following approach is equally
applicable in this matter, given that the decision of the Province to
sell the property is essentially effective within the local
sphere of
government:
‘
[72]
Although the yardstick to be applied in determining compliance with
the obligation is undoubtedly the same, the nature of the
obligation
to facilitate public participation in decision-making at the local
sphere of government is, as is clear from the discussion
above, more
extensive and far-reaching at local-government level than it is at
provincial and national government levels.  This
is consistent
with the scheme of different spheres of government as provided by the
Constitution and is also consistent with the
concept of participatory
democracy that the Constitution is founded upon.  It is, after
all, at the local level that the scope
for participation by members
of the public is greatest.  It is also at that level that the
interests of directly affected
communities can more readily be taken
into account and promoted in the process of decision-making.  The
Constitutional Court’s
reference in
Doctors
for Life International
to
the historical context which animates our Constitution, namely the
involvement of communities in organs of people’s power
in the
struggle against apartheid, is instructive.  These organs of
people’s power found most significant expression
in struggles
at a local-community level.  Indeed it is those struggles and
the mechanisms employed to conduct those local
struggles that
informed the very system of local government now provided for in our
Constitution.’  (Internal references
omitted.)
[243]
It is no doubt for this reason that the Provincial Legislature
considered it necessary to include ss 3(2) - (4) in the WCLAA,
which
are clauses dealing with a public participation process in relation
to any proposed disposal of provincial state land under
s3(1)
thereof.  They read as follows:
‘
3(2)
The Premier must publish in the
Provincial
Gazette
in
the three official languages of the province and in an Afrikaans, an
English and an isiXhosa newspaper circulating in the province
in
those respective languages, a notice of any proposed disposal in
terms of subsection (1), calling upon interested parties to
submit,
within 21 days of the date of the notice, any representations which
they wish to make regarding such proposed disposal;
provided that the
aforegoing provision does not apply to any disposal concerning the
leasing of provincial state land for a period
not exceeding twelve
months without an option to renew.
3(3)
The Premier must, in addition to the notices to be published in terms
of subsection (2), cause to be delivered to-
(a)
the occupants, if any, of the
provincial state land to be disposed of;
(b)
the chief executive officer of
the local government for the area in which the provincial state land
to be disposed of is situated;
(c)
the Western Cape provincial
directors of the National Departments of Land Affairs and Public
Works, and
(d)
the Western Cape provincial
director of the National Department of Agriculture, if the provincial
state land is applied or intended
to be applied for agriculture
purposes,
a
copy of the notice referred to in subsection (1), and must advise
those persons that they may, within 21 days of the receipt of
such
notice, make written representations regarding the proposed disposal.
(4)(a)
The notices referred to in subsections (2) and (3) must include the
following information regarding the provincial state
land concerned:
(i)
the full title deed description of such land, including the title
deed number, the administrative district in which the provincial

state land is situated and, if applicable, the nature of any right in
or over such land;
(ii)
the current zoning of such land; and
(iii)
the actual current use of such land.
(4)(b)
The notice referred to in paragraph (a) must include an office
address at which full details concerning the provincial state
land in
question and the proposed disposal may be obtained.’
[244]
Acting in terms of s10 of the WCLAA, the Premier of the Province
issued the Regulations on 16 October 1998 and in Reg 4 the
procedure
to be followed in relation to the disposal of provincial state land
is prescribed.  Before I set out the contents
of the Reg 4, it
is necessary to refer to certain of the definitions in s1 of the
WCLAA.
‘
(vii)
“provincial state land” means any immovable property
which vests in the Western Cape Provincial Government; .
. .’
‘
(iv)
“immovable property” includes any right in or over
immovable property; . . .’
‘
(iii)
“dispose” includes the sale, exchange, donation or
letting of provincial state land (including the allocation
of
provincial state land free of charge for a period of time), the
conclusion of any form of land availability agreement in respect
of
immovable property with any person and the registration of any real
or personal right in respect of provincial state land, and
“disposal”
has a corresponding meaning.
’
[245]
Reg 4 reads as follows.
‘
Acquisition
and disposal of provincial state land
4(1)
An
offeror
[77]
shall:-
(a)
complete and sign a written
offer, and
(b)
submit
that offer to the Head of the
Component
[78]
as a formal offer:
Provided
that all offers of disposal shall contain a provision to the effect
that the
offeror
acknowledges that:-
(i)
the Provincial Cabinet, after
consulting the [Provincial Property Committee], may, within 21 days
of the receipt of written representations
received pursuant to
section 3(3) of the
Act
,
or such longer period not exceeding 3 months as the Provincial
Cabinet may determine in writing prior to the expiry of that 21-day

period, resile from any contract resulting from the offer, and
(ii)
in the event of the
Provincial Cabinet so resiling the
offeror
will have no right of
recourse against the
Province
or any of its organs or
functionaries, but if the
Province
intends to sell the land at a
higher price than that specified in the formal offer within a period
of three months from the date
when it resiled, the
Province
must first offer to sell land
to the
offeror
at that price.
(2)
The Head of the
Component
or an official in the
Component
designated by him or her shall consider each formal offer, recommend
whether or not it should be accepted further for consideration,
and
notify the
offeror
in writing accordingly: Provided that if an
official is designated by the Head of the
Component
, that
official shall report monthly in writing to the Head of the
Component
on all such recommendations.
(3)
If an offer is accepted for further consideration-
(a)
the land shall be valued in writing by an independent valuer, and
(b)
a written report on the land shall be compiled by the
Component
,
which shall include:-
(i)
the full title deed description of the land;
(ii)
the buildings or improvements, if any, of the land;
(iii)
the current zoning of the land;
(iv)
the value of the land;
(v)
the current and intended uses of
the land;
(vi)
any legal restrictions
pertaining to improvements or buildings on the land or the
development of land;
(vii)
the reasons why the offer was
accepted for consideration, and
(viii)
the financial aspects of the
proposed transaction.
(4)
In cases where the value of the land as determined by the independent
valuer and the amount of the offer does not exceed:-
(a)
R5 million, copies of the offer, the valuation and the
Component’s
written report shall be submitted to the Head of the
Component
who after consultation with the Minister shall decide whether the
offer is to be accepted and, if so, shall sign the written contract

on behalf of the
Province
, subject to the provisos to
sub-regulation (1), and
(b)
R10 million, copies of the offer, the valuation and the
Component’s
written report shall be submitted to the
Minister
who shall
decide whether the offer is to be accepted and, if so, shall sign the
written contract on behalf of the
Province
, subject to the
provisos to sub-regulation (1):
Provided
always that:-
(aa)
if, in the case of a disposal, the value of the land as determined by
the independent valuer exceeds the value of the offer,
the offer
shall be dealt with in terms of sub-regulation (5);
(bb)
if, in the case of an acquisition, the value of the land as
determined by an independent valuer is less than the value of the

offer, the offer shall be dealt with in terms of sub-regulation (5),
and
(cc)
for the purposes of this sub-regulation the value on offer of lease
shall be the total consideration payable by the lessee
to the lessor
over the period of the lease, excluding any renewal period.
(5)
In cases where the value of the land as determined by the independent
valuer or the amount of the offer exceeds R10 million
or where the
proviso to sub-regulation (4)(b) is applicable:-
(a)
copies of the offer, the valuation and the
Component’s
written report shall be submitted to the
Committee
for
consideration;
(b)
the
Committee
shall report in writing to the Provincial
Cabinet on the offer;
(c)
the Provincial Cabinet shall decide whether the offer is to be
accepted, and
(d)
if the Provincial Cabinet so decides, the
Minister
shall sign
the written contract on behalf of the
Province
, subject to the
provisos of sub-regulation (1).
(6)
If a written contract has been duly signed on behalf of the
Province
, that contract shall be a proposed
disposal or a proposed acquisition and, in the case of a proposed
disposal is, the
Minister
shall exercise the
powers and comply with the duties conferred on the
Premier
by section 3(2), (3) and (4) of the
Act
.’
[246]
Those portions of Regulation 4 which I have emphasized by way of
highlighting are challenged, by both RTC and the National
Minister,
as unconstitutional in that they are said to be
ultra vires
the
empowering legislation and inconsistent with the right to just
administrative action protected under s33 of the Constitution.
“
PROPOSED
DISPOSAL”
[247]
Turning to the empowering provisions in s3 of the WCLAA, the use of
the phrase ‘proposed disposal’ in ss3(2) is
central to
the argument advanced by the applicants.  That subsection
requires the Premier to give notice of such a proposed
disposal in
order to trigger the prescribed public participation process.  Mr.
Jamie SC argued that, applying a purposive
interpretation of the
provision, what the Provincial Legislature contemplated was that such
notice be given before any steps were
taken to confer an entitlement
on the offeror to acquire the land.  In so doing, said counsel,
the Legislature envisaged a
process where the public participation
and subsequent debate as to whether a disposal should take place
preceded the conclusion
of any contract.
[248]
As set out earlier, the decision in
Goedgelegen
requires the
Court to prefer a generous construction of s3 of the WCLAA in order
to afford, inter alia, RTC ‘the fullest
protection of their
constitutional guarantees’ contemplated in the statute.  And
in so doing, regard must be had to
the social and historical
background to the legislation and its intended objectives.
[249]
The context here is, importantly, the obligation on the Province to
address the historical injustices perpetuated through
the deprivation
of the majority of our citizens of access to land.  Indeed, and
as pointed out earlier, the 2014 Provincial
SDF listed ‘spatial
justice’ as the first of its guiding principles.  Further,
the injunctions embodied in ss
25(5) – (8) of the Constitution
must be considered.  Finally, there is the Province’s duty
in promoting the right
of access to adequate housing under s26 of the
Constitution.  As part of the Province’s function in
promoting access
to these rights is the approach to public
participation considered in
Doctors for Life
.
[250]
From a purely linguistic perspective, ‘proposed’ is
defined in the New Shorter Oxford English Dictionary to mean
‘put
forward for consideration or action’, while the definition of
‘propose’ includes ‘decide on
or put forward.’
Applying these definitions to the wording of the statute, the
intention of the Legislature appears
to have been to facilitate
public participation in the process from the outset.  This would
make sense if one was dealing
with an intended sale, lease or ‘land
availability agreement’ in which the public might be
interested.  All the
more so, in the circumstances of the
present case, where interested parties might wish to persuade the
Province that sought after
state-owned land close to the Cape Town
CBD could be made available for the provision of much needed
affordable housing.
[251]
In arguing this aspect of the application on behalf of RTC, Ms. de
Villiers, stressed that the structure of the regulations,
however,
was to permit the entire disposal/acquisition process to take place
before the public was invited to express a view thereon.
Viewed
in a contractual context the offer and acceptance process has been
completed and the parties to the contract are
ad idem
on all
the material terms of their bargain.  What then was there to
comment on, stressed counsel, when the disposal was already
a done
deal?  It was submitted that the regulations appeared to place
the cart before the horse.
[252]
In his judgment in
Blom
[79]
in
the pre-constitutional era, Corbett CJ dealt with a party’s
right to be heard in relation to an administrative decision
and,
noting the “natural human inclination to adhere to a decision
once taken”, stressed that the “right to be
heard after
the event, when a decision has been taken, is no adequate substitute
for a right to be heard before the decision is
taken.”  In
Nortje
[80]
Brand AJA stressed that the taking of
a decision before hearing an interested party should be the exception
rather than the rule.
[253]
The rationale behind this line of
reasoning is that it unfairly places a burden on the person seeking
to participate in the public
process that s/he must effectively
persuade the decision-maker that it was wrong because it has already
considered the matter and
taken its decision.
[81]
This has the effect that the
person is:
‘
placed
in the situation where he or she has the
onus
of
convincing the [decision-maker] to change his given decision . . .
[The decision-maker] will, in a sense, be acting as an appeal

tribunal in respect of his own decision and that, in my view, cannot
be said to be a fair procedure.’
[82]
[254]
The facts of this case illustrate the unfairness of the prescribed
procedure.  After a protracted EOI process (during
which the
focus was on the private use of the land through a long term lease),
a binding contract of sale was eventually concluded
by the Cabinet
with the Day School pursuant to authority and a further process which
patently lacks transparency: I have referred
above to the absence of
any documentary proof from the Province of its decision in this
regard.
[255]
Thereafter, the ‘proposed disposal’ was advertised, as
happens not infrequently, over the Christmas period, when
most of
Cape Town is in summer holiday mode.  A period of 3 weeks was
given in which objectors were required to consider the
sale, access
the documents from a provincial office (no doubt supported by
skeleton staff over the recess), take advice and formulate
their
objections so as to persuade the MEC that the sale was not a good
idea because consideration was, for example, not given
to other uses
for the land such as the provision of social housing.
[256]
In taking the prescribed procedural steps the Province botched
advertising requirements and, when challenged by RTC in that
regard,
readily accepted that its mistake constituted a material procedural
flaw.  Pursuant to the granting of the interdict
on 5 May 2016,
which was taken by agreement, the Province fixed a revised time-table
for the public participation process, which
resulted in a veritable
deluge of objections by approximately 5000 interested parties on both
sides of the divide.  This had
the consequence that the Province
was unable to consider the objections within the allocated time and
the time-frames were required
to be extended.
[257]
These uncontroverted facts demonstrate, in my view, that RTC was
bound by a process which could not (and did not) afford it
a fair
opportunity to make representations to the Province regarding its
intention to sell the Tafelberg site before the deed of
sale with the
Day School was concluded.  In offering objectors an opportunity
to have their say after the event, Reg 4 contemplates
a situation in
which the Province must be persuaded to resile from an otherwise
binding contract for the sale of land.  Such
a process makes it
difficult for an objector to, for instance, attempt to persuade the
Province not to sell at all, as opposed
to raising an objection to
the terms of the sale itself e.g. with respect to price or payment
terms.  A fair procedure in
the circumstances would, in my view,
call for objections at an early stage of the process (and before the
selection of the approved
purchaser and the conclusion of a deed of
sale), so that there would be a clean slate upon which all competing
views could be inscribed
and evaluated.
[258]
In their written argument, counsel for the Province submitted that
the impugned regulations do in fact provide for a system
of public
participation which was fair and transparent, albeit that such
process comes after, rather than before, the sale agreement
has been
concluded.  It was said, firstly, that the notice and comment
procedure prescribed by Reg 4 was consistent with the
provisions of
ss4(1) and (3) of PAJA and should therefore not be set aside.
[259]
The relevant subsections of PAJA read as follows:
‘
4.
Administrative action affecting public
(1)
In cases where an administrative
action materially and adversely affects the rights of the public, an
administrator, in order to
give effect to the right to procedurally
fair administrative action, must decide whether-
(a)
to hold a public enquiry in
terms of subsection (2);
(b)
to follow a notice and comment
procedure in terms of subsection (3);
(c)
to follow the procedures in both
subsections (2) and (3);
(d)
where the administrator is
empowered by any empowering provision to follow a procedure which is
fair but different, to follow the
procedure; or
(e)
to follow another appropriate
procedure which gives effect to section 3.
(2)
. . .
(3)
If an administrator decides to follow a notice and comment procedure,
the administrator must -
(a)
take appropriate steps to communicate the administrative action to
those likely to be materially and adversely affected
by it and call
for comments from them;
(b)
consider any comments received;
(c)
decide whether or not to take the administrative action, with or
without changes; and
(d)
comply with the procedures to be followed in connection with notice
and comment procedures, as prescribed.
(4)
(a) If it is reasonable and justifiable in the circumstances, an
administrator may depart from the requirements referred to
in
subsections (1)(a) to (e), (2) and (3).
(b)
In determining whether a departure as contemplated in paragraph (a)
is reasonable and justifiable, an administrator must take
into
account all relevant factors, including –
(i)
the objects of the empowering provision;
(ii)
the nature and purpose of, and the need to take, the administrative
action;
(iii)
the likely effect of the administrative action;
(iv)
the urgency of taking the administrative action or the urgency of the
matter; and
(v)
the need to promote an efficient administration and good governance.’
[260]
The WCLAA is legislation which
pre-dates the promulgation of PAJA on 31 July 2002.  In the
result, the Premier could not have
been guided by s4 in 1998 when he
issued the regulations: at that stage he would have had to have been
guided by the common law
interpreted in accordance with principles
under-pinning s33 of the Constitution.
[83]
But when this Court is called
upon to determine the constitutionality of Reg 4 it will look to
PAJA, which is the legislation promulgated
to give effect to the
rights protected under s33 and determine whether the regulation in
question passes constitutional muster.
[84]
Cora Hoexter
[85]
stresses the importance of public
participation in the Constitutional era, observing that, where ss4(2)
and (3) of PAJA are resorted
to ‘an administrator...is obliged
to comply with the requirements of those subsections
.
’
[261]
As I have said, counsel for the Province submitted, firstly, that the
Cabinet decisions of November 2015 and March 2017 did
not constitute
administrative action and that the provisions of Reg 4 were thus not
justiciable under PAJA.  They further
submitted that, in any
event, the impugned regulations were not inconsistent with s4 of
PAJA, but argued that, to the extent that
they might be found to be,
s4(1)(d) permitted such a deviation provided it was fair.
[262]
I have already held that these
decisions constituted administrative action and will therefore deal
only with the alternative arguments
advanced by the Province.  The
impugned regulations are, to my mind, inconsistent with the overall
architecture of s4 of PAJA,
which contemplates a public participation
process before a decision is made.  The complexities of the
process introduced by
Reg 4, which provides for all the relevant
considerations to be taken into account by the administrator, a
binding contract to
be concluded (albeit with a contractually curious
escape route for the Province
[86]
- what counsel dubbed ‘a get out
of jail free card’) and then a public participation process to
be advertised and responded
to in a mere 3 weeks.
[263]
In my view the prescribed procedure quite plainly puts the proverbial
cart before the horse and places an unduly onerous burden
on the
objector to show the administrator that it was wrong.  One only
has to look what actually happened in this matter to
appreciate the
flaws inherent in Reg 4 – a decision with final and binding
effect taken in November 2015 was held up by the
notice and comment
process for 17 months – a delay which could hardly be said not
to have been prejudicial to the Day School,
which no doubt had to
bear the financial cost of keeping capital available to fund the
deal.
[264]
Counsel for the Province could advance no compelling argument to
justify the unusual order of the procedure.  In my view
there is
none.  The WCLAA refers to a proposed disposal, thereby
signifying an intention to conclude a written contract of
sale (or,
for that matter, a lease or any form of land availability agreement)
in compliance with the relevant legal requirements
and contemplates
the public being afforded the opportunity to comment thereon before
the decision is finally taken.
[265]
Given that one is concerned here with
the disposal of state-owned land, and having regard to the
over-arching constitutional imperatives
in relation to the redressing
of the historical deprivation in relation to access to land ownership
and housing, effective public
participation in such a process is
crucial and it must, of necessity, pass constitutional muster.
Counsel for RTC referred
to an article by Prof. Sandra
Liebenberg
[87]
in which it was suggested that the
achievement of social rights under the Constitution through a process
of public participation
emphasized the importance of affording such
participants the ‘opportunities to shape the meaning of rights
in ways which
are responsive to their lived experiences of poverty.’
[266]
In
Matatiele
Municipality No.2
[88]
the Constitutional Court echoed this
sentiment:
‘
[65]
Before leaving this topic, it is necessary to stress two points.
First, the Preamble of the Constitution sets as a goal
the
establishment of “a society based on democratic values [and]
social justice” and declares that the Constitution
lays down
“the foundations for a democratic and open society in which
government is based on the will of the people”.
The
founding values of our constitutional democracy include human dignity
and “a multi-party system of democratic government
to ensure
accountability, responsiveness and openness”.  And it is
apparent from the provisions of the Constitution
that the democratic
government that is contemplated is partly representative and partly
participatory, accountable, transparent
and makes provision for
public participation in the making of laws by legislative bodies.
[66]
Consistent with our constitutional commitment to human dignity and
self-respect, s118(1)(a) [of the Constitution] contemplates
that
members of the public will often be given an opportunity to
participate in the making of laws that affect them.  As has
been
observed, a “commitment to a right to . . . public
participation in governmental decision-making is derived not only

from the belief that we improve the accuracy of decisions when we
allow people to present their side of the story, but also from
our
sense that participation is necessary to preserve human dignity and
self-respect”.’  (Internal references
omitted.)
[267]
In the result, I am persuaded that the impugned provisions of Reg 4
are
ultra vires
the empowering legislation and, furthermore,
do not pass constitutional muster when measured against the relevant
provisions of
the Constitution and PAJA: the impugned provisions are
procedurally unfair in that they do not afford interested parties a
right
to be heard before a decision to dispose of state land is made.
The applicants have accordingly made out a case for a
declaration
of invalidity and the setting aside of those parts of the
Regulations.
[268]
Mr. Fagan SC’s fall-back
position on this part of the case dealt with the consequences of such
a declaration of invalidity.
Counsel pointed to the potentially
disruptive effect of such a declaration and the consequences for the
numerous disposals
under the WCLAA which would have taken place since
the promulgation of the act.  The concern expressed by counsel
is certainly
a valid one and, as suggested by counsel for RTC in
their heads of argument, such a declaration might have ‘a
domino effect’
on other disposal decisions.
[89]
The Court was accordingly
requested to craft an appropriate just and equitable order in terms
of s172(1)(b) of the Constitution.
I am of the view that it
will be possible to make such an order and avoid the consequences
alluded to.  This will be
incorporated in the order that the
Court will ultimately make.
[269]
The envisaged declaration of invalidity will void both Cabinet
decisions and require the Province to recommence the disposal
process
under the WCLAA, (with its regulations duly amended) if it is so
minded.  That effectively is the end of the case
in relation of
the sale to the Day School and what remains is for the Court to deal
with the IFRGA argument and the structural
interdicts.  However,
before doing so, and in the event that the conclusion in regard to
the invalidity of the regulations
is not correct, it is necessary to
deal with the other grounds of review advanced by the applicants.
IS
THE NOVEMBER 2017 CABINET DECISION CAPABLE OF REVIEW?
[270]
Like the attack on the unlawfulness of Reg 4, the attack on the
Cabinet decision of 11 November 2015 (“the Minute”)
is a
stand-alone ground for relief in this matter: if the decision is
found to have been unlawfully taken, the enquiry leading
to the March
2017 decision to resile is without any foundation.  I have
already referred to some aspects of the November 2015
decision in
setting out the historical background and context and will now focus
on the core of the decision.
[271]
At the heart of the decision to sell the property is the raising of
revenue to contribute to the PPP for the building of a
new head
office to accommodate the WCED.  This is recorded in the
introductory part of the Minute as follows:
‘
Alignment
with Provincial Strategic Goals
The
disposal of the Properties is in line with the Provincial Strategic
Goals
PSG2 & PSG4
:
Improve
education outcomes and opportunities for youth development.
Enable
a resilient, sustainable, quality and inclusive living environment.’
[272]
Under the heading ‘
Priority Classification
’
towards the end of the minute the following is noted.
‘
38.
The proceeds of the disposal or will be used as a financial
contribution towards the procurement of new Provincial office
accommodation
on Erf 172814 Cape Town . . . for officials of the
WCG.’
Earlier
the following was noted, under the heading ‘
Financial
Implications
’.
‘
35.
The Provincial Revenue Fund will be credited with an amount of
R135 000 000.00
(One
Hundred and Thirty-Five Million Rand) should approval be granted for
the disposal of the Properties to the Phyllis Jowell Jewish
Day
School NPC.’
[273]
The Minute contains extensive details regarding compliance with the
procedural steps prescribed by the WCLAA Regulations.
I did not
understand the applicants to rely on non-compliance with any such
steps as constituting any basis for review.  Rather,
RTC relies
on 5 grounds of review under PAJA and, if PAJA does not apply, it
seeks to review in terms of the principle of legality
on the basis
that the Province’s conduct was irrational.
[274]
The principal review grounds under PAJA are said by RTC to be that
the Cabinet decision of November 2017 was:
274.1. vitiated by a failure to comply
with GIAMA and the constitutional, statutory and policy obligations
to redress spatial injustice
in central Cape Town;
274.2. unreasonable and irrational;
274.3. based on errors of law;
274.4. taken without complying with
mandatory co-operative governance obligations; and
274.5. tainted by conflict of
interest.
CONFLICT
OF INTEREST
[275]
The alleged conflict of interest was based on the appointment of the
Twelfth Respondent, Mr. Gary Fisher, a private sector
property
developer active in the Sea Point area, as a Deputy Director-General
in the DTPW during the period May 2011 to April 2014.
The
allegations in the RTC founding affidavit were based on an online
report by the amaBhungane Centre for Investigative
Journalism in July
2016, which suggested impropriety on the part of the Province, given
that Mr. Fisher had a beneficial interest
in a property development
worth R92m located on Main Road, Sea Point, close to the Tafelberg
site.
[276]
The Province responded to the allegations by stating that Mr. Fisher
had made a full disclosure to it of his interest in his
property
development business prior to his employment, and that he was
involved, on behalf of the Province, only in the development
of
another provincial project on the site of the old Conradie Hospital
in Pinelands.  The Province refused RTC access to documentation

in this regard and RTC did not take any steps under the Rules of
Court to procure same.
[277]
Mr. Fisher did not participate in the proceedings and in argument
before us Mr. Hathorn SC did not press this ground of review
beyond
the submissions made in the heads of argument.  In the
circumstances I am of the view that the conflict of interest

contended for has not been established on the papers and can be
ignored as an independent ground of review.
THE
APPLICATION OF GIAMA
[278]
The attack on the Province’s failure to comply with its
obligations under GIAMA was advanced by both RTC and the National

Minister and I shall deal with the submissions in that regard
jointly.  The point of departure is the reliance in the Minute

on the provisions of GIAMA as constituting the legal foundation for
the Province’s decision to dispose of the property.
[279]
The relevant extract from the Minute is to the following effect:
‘
22.
The Government Immovable Asset Management Act, No. 19 of 2007 (GIAMA)
states that:
22.1
An immovable asset becomes surplus to the user if it does not support
its service delivery objectives at an efficient level
and it cannot
be upgraded to that level;
22.2
When an immovable asset must be disposed of, best value for money
must be realised;
22.3
Best value for money is defined as the optimisation of the return on
investment in respect of an immovable asset in relation
to
functional, financial, economic and social return, wherever possible;
22.4
The Custodian, when it disposes of any immovable asset must consider
whether the asset cannot be used in relation to the social

development initiatives of government; and
22.5
Whether it cannot be used in relation to government’s
socio-economic objectives including the alleviation of poverty,
job
creation and wealth distribution.
23.
All Government Departments including the Department of Rural
Development and Land Reform were consulted before a decision to

dispose of the Properties was taken.
24.
Although the [PDHS] requested that the Properties be made available
to them for integrated sustainable human settlements, an
agreement
was reached between the DTPW and the [PDHS] that the [PDHS] withdraw
the said request, in order to allow the DTPW to
proceed with the
disposal of the Properties, to create the necessary income for the
construction and maintenance of social infrastructure
for the Western
Cape Government (WCG).  Copies of the correspondence between the
DTPW and the [PDHS] are attached . . .
25.
The Properties are therefore not required for any government purpose
and can be disposed of.
26.
Taking into account the current market value of
R107 300 000
. . . and the offer of
R135 000 000
. . . that was
received from . . . the Day School . . . for the purchase of the
Properties, the WCG will succeed in achieving best
value for money as
set out in Section 5, the Principles of Immovable Asset Management of
GIAMA.
27.
The proposed disposal of the Properties to . . . the Day School . . .
thus falls within the ambit of the aforementioned principles
set out
in GIAMA.’
[280]
I did not understand either Mr. Hathorn SC nor Mr. Jamie SC to take
issue with the fact that the disposal was made for ‘the
best
value for money’ as defined in s1 and required under s5(1)(e)
of GIAMA.  Rather, the thrust of the attack was on
the
conclusion arrived at by the Province that the property was not
required for any government purpose and could thus be disposed
of by
way of private sale.  Central to this argument is whether the
property was properly regarded as surplus by the Province.
WAS
THE TAFELBERG PROPERTY ‘SURPLUS’?
[281]
The determination as to whether the Tafelberg site was surplus turns
on an interpretation of the relevant provisions of GIAMA.
That
exercise in turn requires an approach to purposive interpretation on
the basis articulated earlier and, given that one
is dealing with
state-owned land, consideration of the positive obligations in
respect of land reform imposed on the Province by
s25(5) of the
Constitution, buttressed by the injunction in s4(2)(a) of the WCLAA
(the relevant provincial land administration
law defined in s1 of
GIAMA) that the disposal of such land must realise ‘the
nation’s commitment to land reform and
the other reforms
required to bring about equitable access to all South Africa’s
relevant natural resources’.
[282]
As appears from the extract from the affidavit of Ms. Gooch already
referred to, the Province’s position is that the
Tafelberg site
became surplus through operation of law in June 2010.  This
demonstrates, in the first place, that the Province
did not, at that
time, give express consideration to any of the questions which GIAMA
required it to ask.  Indeed, notwithstanding
the production of
many thousands of pages of documentation in this matter, there is
nothing referred to by the Province which suggests
that in June 2010
the DTPW was even alive to the provisions of GIAMA.  Secondly,
it shows that the Province did not purport
to act in terms of either
its C-AMP or U-AMP.  It appeared during argument to be common
cause that in 2010 the DTPW had not
compiled either type of plan and
that there was therefore no internal policy documentation by which it
might have been guided in
its thinking.
[283]
The ‘surplus by operation of law’ argument is in any
event inconsistent with the common cause facts – that
up until
May 2014 (when the last tenant was evicted) the PDHS continued to use
the Wynyard Mansions portion of the property for

accommodation/housing purposes.  Further, as the letter from the
HOD of 26 March 2013 to the DTPW demonstrates, the PDHS maintained

the stance that the property as a whole (including the school site)
still supported the PDHS’ service delivery objectives.
[284]
And, when the HOD asserted this position in March 2013, he was not
told that he was wrong because the property was surplus
under GIAMA
and the DTPW was thus entitled to deal with the property in terms of
that statute.  Rather, as the minutes reflect,
the erstwhile
MEC, Mr. Carlisle, told the meeting that the Tafelberg site was not
available for human settlement development as
it was prime land that
could be sold for around R80m.  It is clear from those minutes
that as early as mid-2013 the property
was earmarked for disposal
because of its potential value, and that that was the only factor
that the Province was considering.
As Mr. Jamie SC put it
rather euphemistically, ‘the carrot was the cash’.
[285]
However, before the decision to dispose of the property could be
taken, s5(1)(a) of GIAMA required the user (in this case
both the
WCED and the PDHS) to decide, firstly, that the property did not
support each user’s service delivery objectives
at an efficient
level, and secondly, that the property could not be upgraded to that
level of efficiency.  As a matter of
fact, the stance adopted by
the HOD in March 2013 demonstrated that the PDHS
qua
user was
indeed of the view that the entire property could be so upgraded,
and, moreover, in the absence of any contrary decision,
either by the
WCED or the DTPW, the property was thus incapable of being regarded
as surplus under GIAMA.
[286]
The failure by the Provincial
departments to take those decisions is not entirely surprising, given
the fact that there were no
U-AMPs in place and, further, because
both the custodian and user departments appeared to be blissfully
unaware of the existence
of GIAMA, or at least of its mandatory
requirements.  The existence of such a U-AMP was a necessary
tool
[90]
which the users were duty bound to
utilise in coming to an informed decision, under s5(1)(a) of GIAMA,
as to whether the properties
supported their service delivery
objectives efficiently or were capable of being upgraded to the
required level.
[287]
The absence of a U-AMP in this case was of particular relevance,
because the Tafelberg site comprised two erven with different
users.
It is not inconceivable then that, had there been a U-AMP in
place, it might have dealt with the use by each department
of the
whole site.  So, for example, if the WCED was of the view that
the school no longer met the requirements for efficient
use under
s5(1)(a), it might have made provision for the transfer of that part
of the property to the other user for consideration
of upgrading the
property by the PDHS for housing in accordance with its C-AMP, or
vice versa.
I shall return to this point later when I
consider s5(1)(f) of GIAMA.
[288]
Allied to this point are the provisions of s8(d) of GIAMA which
require that one of the components of a U-AMP must be ‘an

immovable asset surrender plan.’  The rendering of a
property as surplus would have to be informed by such a surrender

plan, something which would have been material in this matter.
[289]
In argument Mr. Fagan SC emphasized the fact that in August 2015 the
HOD of the PDHS ‘agreed’, in the spirit of
good
governance and collegiality, to withdraw the department’s
interest in the property so keenly expressed and motivated
by his
predecessor in March 2013.  Counsel submitted that, as a fact,
the user had effectively supported the disposal by withdrawing
the
PDHS’ interest in the property thereby enabling a lawful
disposal to be made under GIAMA and the WCLAA, as the property
was by
then surplus.
[290]
The submission on behalf of the Province was further that,
notwithstanding the absence of U-AMPs and C-AMPs, there had been

substantial compliance with the relevant statute governing the
disposal,
viz
the WCLAA.  Counsel suggested that, in
truth, GIAMA, which was later framework legislation, did not apply to
the disposal in
this matter.  The submission is difficult to
follow because in fact that is precisely how Cabinet made its
decision in November
2015 – in the Minute there is express
reference to compliance with GIAMA, with barely a word being said in
regard to the
WCLAA, other than to mention it as providing the
‘Legislative Mandate’ for the decision.
[291]
In any event, the withdrawal of the PDHS’ interest in the
property came at a very late stage of the process, and long
after the
Province had taken a decision in principle to dispose of the property
on the open market for the maximum amount obtainable.
By August
2015 the DTPW had already commenced the offer process under the WCLAA
and the PPC had made its recommendation under
the same statute.  And,
although Mr. Mguli put up the white flag on behalf of the PDHS, he
did so in circumstances where his
own department persisted in its
view that the property was suitable for development to achieve its
target market for social housing.
[292]
In my view, the process that was followed by the Province did not
comply with the requirements of GIAMA, which require a user
to make
its decision in accordance with its U-AMP that an asset was surplus
before it is surrendered to the custodian.  Once
that has
happened the custodian in turn must take stock of the position in
terms of its own C-AMP before determining that the property
is
surplus.  Once again the analogy of the horse and cart comes to
mind: in my view it is impermissible for the custodian
to decide to
dispose of an asset while the user still has an interest in the
continued use of it and the property has not been
declared surplus.
[293]
The Province advanced a further
argument in relation to its entitlement to sell the property even if
it was not surplus.  A
distinction was sought to be drawn
between ss4(2) and 13(3) of GIAMA
[91]
on the basis that the former does not
refer to surplus immovable property, while the latter expressly does.
The argument was
to the effect that, limiting the Province’s
powers to dispose only of land that was surplus as defined in GIAMA,
constituted
an unwarranted and unworkable restriction on its ability
to sell immovable assets for the purpose, for example, of raising
revenue.
It was further submitted that such an interpretation
would amount to an arbitrary deprivation of Provincial land in terms

of law that was not of general application.
[294]
Mr. Hawthorn SC’s reply on this point sought to demonstrate
that the Province had fundamentally misunderstood GIAMA,
which he
said had to be read contextually and purposively, both with regard to
the objects of that act and the obligations placed
on the state and
the provinces
qua
property owners under ss25(4) – (9) of
the Constitution.
[295]
It was said that s4(2) was an introductory provision at the beginning
of GIAMA under the heading ‘Relationship between
and
responsibility of custodian and user’ which, in general,
empowered a custodian to acquire, manage and dispose of an immovable

asset.  S13(3), on the other hand, it was pointed out, falls
under the heading ‘Functions of custodian and accounting

officer of custodian’ and is a subsection which provides that a
custodian may dispose of a surplus immovable asset by the
allocation
thereof to another user or, subject to any applicable statute, to
sell, lease, exchange or donate it to a third party.
Thus, it
is only if such asset is surplus and surrendered by the user to the
custodian that the latter may dispose of it.
[296]
I agree with Mr. Hathorn SC that this is the sensible and practical
way to give the two provisions a purposive meaning in
the same
statute.  If the Province’s interpretation was adopted,
this would permit it to pick and choose whether it
needed to comply
with the system of safeguards carefully put in place in GIAMA, whose
architecture is inward-looking to commence
with: the intention being
that immovable property should first be considered for use by other
departments of State before being
offered for sale on the open
market.  Such an approach makes sense given that it would avoid
a department selling off valuable
land and then having to incur
expenditure at market related prices to buy in other land which it
needed.  The analogy of recycling
second-hand goods within the
family before selling them comes to mind.
[297]
The age-old adage ‘They’re not making land anymore’
is appropriate in considering what the State may do
with its land –
a most valuable resource which enjoys constitutional protection and
must not be disposed of without sound
reason.  In this context,
GIAMA is the over-arching legislation which gives effect to the
strict controls imposed on the disposal
of State land, while the
WCLAA is the statute which prescribes the procedural mechanisms to be
adhered to in the Western Cape.
[298]
It follows, in my view, from the application of s13(3) of GIAMA that
the Tafelberg site could only be sold on the open market
if it was
surplus as contemplated under that act.  And, as the analysis
above demonstrates, the Province did not take the
requisite steps to
procure the status of the land as surplus before it set about
disposing of it.  The entire disposal process
undertaken by the
DTPW, going back to 2011 with the High Level Scoping Report, followed
by the WCPDP and the EOI, was unlawful,
as the Tafelberg property was
not surplus and had not been surrendered by the users to the DTPW.
The disposal took place
in the absence of the mandatory
jurisdictional facts and was accordingly unlawful.  On this
basis, too, the Cabinet decision
of November 2015 falls to be set
aside.
WHAT
OF ALLOCATION TO ANOTHER USER?
[299]
There was a second string to RTC’s
bow.  It was submitted that even if the Tafelberg site was
surplus under GIAMA, the
disposal was still unlawful, as the property
should not have been sold on the open market before an assessment had
been made under
that act as to whether it could have been used to
advance the social development initiatives of the Province (which
included land
reform) through the allocation of the land to another
user.  The argument was based on a reading of the general
principles
of immovable asset management and in particular
s5(1)(f)
[92]
of GIAMA, read with s13(3)(a) which
has been set out above.
[300]
In the Minute at para’s 22.4 and 22.5 the Cabinet recites a
paraphrasing of the wording of ss5(1)(f)(ii) and (iii),
but it does
not say whether it heeded the injunction inherent in those sections
and, if it did, what it considered and what conclusions
it arrived
at.  Similarly, Ms. Gooch makes only the bald allegation in the
answering affidavit that the requirements of s5(1)(f)
were met by the
Province and that consideration was given thereto: she offers no
documentary proof or comment in that regard.
[301]
This lack of detail in the Province’s case is an important
strut in RTC’s case.  Firstly, as already noted,
there
were no U-AMPs or C-AMPs in place which might have guided the
Province in its decision-making in 2010-2011.  To stress
the
point made earlier, the disposal procedure was made outside of the
statutory constraints of GIAMA and manifestly no consideration
could
have been, or was, given to the allocation of the asset to another
user.
[302]
When the prospect of the PDHS making use of the property for housing
was raised by the HOD in March 2013, his proposal was
dismissed
without more by Mr. Carlisle, whose only interest then was the price
that the property could fetch.  This stance
by a political
functionary (and its implicit rejection of the considerations
embodied in s5(1)(f)) was echoed later by Mr. Carlisle
when he made
the ‘No RDP in the CBD’ comment.  Clearly, there was
a clear divergence of approach between the politicians
and the
departmental officials steeped in the knowledge of the Province’s
needs and obligations.
[303]
In any event, had the Province considered the disposal from the
outset in terms of ss5(1)(f) and 13(3)(a) of GIAMA, read with
s4 of
the WCLAA, it would have been bound to consider whether the property
could be used by another user, or jointly by more than
one user.  In
so doing it was bound to have regard to government’s social
development initiatives and its socio-economic
objectives, which
include land reform, black economic empowerment, job creation,
poverty alleviation and the redistribution of
wealth.  It did
not do so even though, firstly, s4(1) of its own provincial statute
expressly obligated it to co-ordinate
its policy of land reform with
both the national and local spheres of government, and, secondly,
where s4(2) thereof determined
the objectives of such co-ordination
to include the national commitment to land reform and the
rationalisation of its ‘custody,
administration and disposal of
provincial state land.’
[304]
Applying a purposive and contextual interpretation to GIAMA and the
WCLAA, the Province would have appreciated that when the
Tafelberg
site indeed became surplus to the use of the WCED (as it now
contends), it was required to assess whether the property
could be
used by another department in the Province, or, for that matter, at
national or local government level, so as to advance
the social
initiatives of government.
[305]
It would further have understood that it was mandatory for the DTPW
to conduct such assessment rigorously, and if it eventually
concluded
that the property was readily capable of being used by another
department (for example, the PDHS), it was duty bound
to consider
disposal of the property only in exceptional circumstances, and then
too in circumstances where it did so to meet compelling
social needs.
By way of example, one might consider the use of the proceeds
to build a much needed clinic or for the erection
of affordable
housing as meeting those needs.  The Province has not sought to
justify the sale of the property on any such
basis in this case.
[306]
The approach discussed above, in respect of the approach to surplus
property under GIAMA, meets the requirements of s25(5)
of the
Constitution, promotes the purport and objects of the Bill of Rights
(particularly with regard to land reform and the redistribution

thereof), is beneficial to the advancement of socio-economic rights
and does not only not run counter to the objects of GIAMA and
the
WCLAA, but positively advances them.
[307]
The disposal by the Province of the Tafelberg property to the Day
School on the assumed basis that it was surplus under GIAMA,
was in
breach of the provisions of both GIAMA and the WCLAA, was unlawful
and is therefore reviewable on this ground too.
[308]
These findings of reviewability render it unnecessary to consider the
other grounds advanced by RTC.  It is also strictly
not
necessary to make any findings in regard to the reviewability of the
Cabinet’s decision not to resile.  However,
in the event
that the finding in regard to the unlawfulness of the disposal in
November 2015 is wrong, I deal now with this aspect
of the case.
IS
THE CABINET DECISION IN MARCH 2017 NOT TO RESILE FROM THE AGREEMENT
REVIEWABLE?
[309]
In their heads of argument, counsel for RTC advanced the grounds of
attack on this decision as follows:
309.1. Non-compliance with GIAMA;
309.2. The factors which Cabinet
considered material in making the decision;
309.3. The viability and feasibility
of social housing; and
309.4. The land cost per unit
justification.
[310]
During the 2016-2017 financial year the DTPW adopted a C-AMP which
did not include the Tafelberg site.  Due to the alleged

confidentiality thereof the C-AMP was not discovered in terms of Rule
53, but an arrangement was made with the State Attorney,
Cape Town in
terms whereof RTC’s attorneys were permitted to inspect it
subject to confidentiality undertakings.  The
key findings of
the inspection are contained in an affidavit by Ms. Mandisa Shandu of
RTC’s attorneys dated 2 February 2018.
The affidavit is
detailed as to the perceived short-comings in the DTPW’s C-AMP,
but now is not the time to comment
thereon.  I shall deal with
just a few of Ms. Shandu’s observations.
[311]
In the correspondence leading up to the inspection, the State
Attorney sought to explain, says Ms. Shandu, that the DTPW’s

practice was to draw up its C-AMP on the basis of information
provided to it by the various users in the form of their respective

U-AMPs.  The DTPW would then supplement the U-AMPs by adding
information at its disposal relating to assets which had been

acquired by (or vested in) the Province during the same period.  This
practice, observed Ms. Shandu, had the consequence that
the Tafelberg
properties relinquished to the DTPW by the WCED and the PDHS during
the course of the year of compilation had simply
‘fallen
through the cracks’, as she put it.
[312]
In the answering affidavit, Ms. Gooch disputed the metaphor resorted
to by Ms. Shandu, pointing out that the C-Amp was ‘a
work in
progress’ and that when it was compiled in respect of the
2016/17 year, the Tafelberg property had ‘simply
not yet been
included’ in the C-AMP.  Ms. Gooch does not say why it was
not included, given the express intention to
dispose thereof in terms
of the 2015 Cabinet decision, and the steps which led up to it from
at least 2013 onwards, when the Regeneration
Programme had been
adopted and the Tafelberg property added to that programme.  And,
if there was a decision as alleged by
the Province in March 2015 to
dispose of the property, why was it not then added to the C-AMP?  The
obvious answer seems to
be that there was no C-AMP in place at the
time these decisions were made and that the disposal was therefore
effected in breach
of the mandatory provisions of GIAMA.
[313]
When the decision not to resile was taken in March 2017 the status of
the C-AMP had not changed: it was still defective to
the extent that
it did not include the Tafelberg property.  Consequently, the
same statutory breach which vitiated the 2015
Cabinet decision
persisted and led to the decision not to resile being similarly
flawed.
[314]
In addition, the absence of a C-AMP which covered the Tafelberg
property in 2017 had the effect that the Cabinet, when it
considered
whether to resile or not, did not take into account (as required
under s13(3) of GIAMA) whether the property could be
allocated to
another user, or sold, leased, exchanged or donated to a third party,
nor could it have considered whether its proposed
course of action
advanced any of the social development objectives described in
ss5(1)(f)(ii) and (iii) of GIAMA.
[315]
If regard be had to the minute signed by the Premier on 3 April 2017
(“the Premier’s minute”) which recorded
the
decision of the Cabinet not to resile, it will be noted that there
too the Province did not record that it had had any regard
to the
requirements of GIAMA or the WCLAA.  Rather, the Cabinet listed
a number of ‘material factors’ which it
considered
pursuant to the public participation process resorted to under s3 of
the WCLAA, and commented thereon.  It is necessary
to go into
some detail in that regard.
‘
MATERIAL
FACTORS’ CONSIDERED BY THE CABINET WHEN DECIDING NOT TO RESILE
[316]
As already noted, the public participation in the reconsideration of
the November 2015 decision was extensive and protracted.
Much
was said by opponents to the disposal about the Province’s
failure to consider the site for affordable housing.
As a
result, Cabinet took the view that in order to come to a rational
decision on the issue, further investigation was called
for and it
asked for a financial model to be prepared so that it could determine
the feasibility of social housing on the Tafelberg
site.  Financial
models were prepared on behalf of the Province, the Day School, NASHO
and Ndifuna.  Save for the Day
School, these showed that social
housing was feasible on the site.
[317]
The Cabinet minute has been set out in full above and will not be
repeated here.  From the Minute it will be noted that
the
Cabinet listed various material factors which it considered when
deciding not to resile from the sale.  The Cabinet held
the
view, inter alia, that the development of social housing on the
property was risky, due to the uncertainty regarding finance
from
national government.  It is against this background that the
Minute must be considered.
DOES
SEA POINT FALL WITHIN A RESTRUCTURING ZONE AS CONTEMPLATED UNDER THE
SOCIAL HOUSING ACT?
[318
]
From the Minute, at para 1.4.1, it can be seen that the Cabinet held
the view that the fact that the property did not fall within
an
identified reconstruction zone (“RZ”), as defined under
the SHA, constituted a legal risk in pursuing any social
housing
development on the Tafelberg site.  Relying on counsel’s
advice in that regard the Cabinet came to the conclusion
that the
much needed reconstruction grant (“RCG”), which was
required to be made available by the DHS for such social
housing,
would not materialise and thus any such project was still-born due to
a lack of funding.
[319]
Before this Court counsel for the Province attacked the RTC
application on 2 flanks with respect to the RZ issue.  Firstly,

it was argued that the proclamation of the RZs for the Cape Peninsula
in December 2011 was only provisional in nature and therefore
could
not be relied upon.  In this regard there are two Government
Notices issued by the DHS which were the subject of the
debate.
[320]
The first, Notice No 848 of 2011, was issued in Government Gazette
34788 of 2 December 2011 and was entitled ‘Provisional

Restructuring Zones’. The document contained the following
headnote:
‘
The
Department of Human Settlements hereby publishes for public
information the following provisional restructuring zones in terms
of
the Social Housing Policy, the Guidelines and the Social Housing Act,
2008 (Act No 16. of 2008): . . .’
The
notice listed a number of RZ’s in 6 provinces, including the
Western Cape where the following designations were made in
respect of
the City of Cape Town, which was the only area in the province to be
allocated RZ’s:
·
‘
CBD and surrounds (Salt
River, Woodstock and Observatory)
·
Southern Near – Claremont,
Kenilworth and Rondebosch
·
Southern Central –
Wakelake (sic) – Steenberg
·
Northern near (sic) –
Milnerton
·
Northern Central –
Bellville, Bothasig, Goodwood and surrounds.’
[321]
A second proclamation, Notice No. 900 of 2011, was issued in
Government Gazette No. 34839 of 15 December 2011.  This
Notice,
which applied only to the Western Cape, was headed ‘Correction
Notice’ and recorded that Notice No. 848 was
corrected through
the substitution of the 5 areas previously designated with the
following:
·
‘
CBD and surrounds (Salt
River, Woodstock and Observatory)
·
Southern Near – Claremont,
Kenilworth and Rondebosch
·
Southern Central –
Wakelake (sic) – Steenberg
·
Northern near (sic) –
Milnerton
·
Northern Central –
Bellville, Bothasig, Goodwood and surrounds
·
South Eastern – Somerset
west (sic), Strand, Gordons bay (sic)
·
Southern – Strandfontein,
Mitchells Plain, Mandalay and surrounds
·
Eastern – Brackernfell
(sic), Durbanville, Kraaifontein, Kuils River
·
Cape Flats – Athloe (sic)
and surrounds (Pinelands to Ottery)
·
Far
South – Fish Hoek, Simonstown.’
[322]
I should point out, too, that a further Notice (No. 390 of 2017,
Government Gazette No. 40815) was issued by the DHS on 28
April 2017
under the heading ‘Restructuring Zones’, noting that it
too was being published for public information.
The table
containing the RZ’s for the Western Cape lists 11 rural
municipal areas from Plettenberg Bay in the east
to Saldanha Bay in
the west.  There is no mention that the designation is
provisional and no areas in the Cape metropolitan
area are contained
in the Notice.  In any event, the Notice post-dates the Cabinet
decision in this matter.
[323]
The second part of the Province’s attack related to the
interpretation to be attributed to the RZ described in both
notices
as ‘CBD and surrounds (Salt River, Woodstock and Observatory)’.
It was said, firstly, that ‘surrounds’
could not
and did not physically include Sea Point, and, secondly, that such
‘surrounds’ to the CBD were intended to
be limited to
Salt River, Woodstock and Observatory.
[324]
Evaluation of the arguments must commence with the provisions of the
SHA.  In her address on behalf of the SHRA, Ms.
Webber took the
Court through the SHA and explained its application with reference to
the facts at hand.  It was not in issue
that the SHRA had
locus
standi
in the case and I did not understand there to be much
issue with the analysis presented on its behalf either.  I shall
accordingly
not repeat what has already been stated above in the
section dealing with the general understanding of social housing.
[325]
The SHRA, which was established in terms of s7 of the SHA, whose
aforementioned long title highlights its obligation ‘(t)o

establish and promote a sustainable social housing environment’
and also ‘to define the functions of national, provincial
and
local governments in respect of social housing’ and ‘to
allow for the undertaking of approved projects by other
delivery
agents with the benefit of public money . . .’, is the agency
of national government responsible for the implementation
of a
‘social housing programme’ which is defined in s 1 of the
SHA as ‘the national housing programme for social
housing,
instituted by the [National Minister] in terms of
s3(4)(g)
of the
Housing Act, 1997
.’
[326]
In terms of the definition of ‘social
housing’
[93]
in
s1
, an approved social housing
project can only be constructed in an approved ‘restructuring
zone’
[94]
(the RZ referred to above).  The
identification of such a RZ is a municipal function under
s5(d)(i)
of
the SHA and thereafter, under
s3(1)(f)
, the Province must submit the
RZ’s so identified to the National Minister for designation as
such.
[327]
The prior designation of a RZ is key to any social housing programme
for it is vital to the provision by the State of an RCG
,
which
is advanced by the DHS under
s18
of the SHA, for the purposes of
providing the capital necessary to fund the project in question.  In
the result, the identification
of land suitable for social housing is
a co-operative and integrated process that spans all three spheres of
government, and it
is axiomatic that consultation in relation to the
promotion and achievement of social housing is required at all of the
said three
spheres.  As I have said, the applicants contend that
the ‘Cape Town and surrounds’ RZ, per definition,
includes
Sea Point.  The City and the SHRA agree with this
definition while the Province does not.
[328]
I shall commence the enquiry with a purely literal interpretation.
The New Shorter Oxford English Dictionary does not
carry a
definition of ‘surrounds’ as such, but ‘surround’
(which appears to be a synonym therefor) is defined
to include ‘the
area or place around a place or thing; the vicinity, the
surroundings, the environment . . .’  Another
synonym for
‘surrounds’ (which is often used in the same context) is
‘environs’ which is defined in the
Shorter Oxford as
‘(t)he district surrounding a place, [especially] an urban
area
.
’
[329]
Applying that interpretation to the
geography involved here, it will be noted that if one were to look at
a plan view of the city
centre, the Sea Point area in which the
property is located is closer (distance wise as the proverbial crow
flies) to the CBD than,
for example, Observatory.
[95]
But one cannot access the Sea
Point area directly from the city centre because of the geography
presented by the mountain: between
the CBD and Sea Point lies the
rump of Lion’s Head and Signal Hill.  One must therefore
follow the curve of the foothills
of the mountain along Ocean View
Drive, High Level Road or Main Road to reach Sea Point.  So, I
suppose it might be argued
by some that Sea Point cannot be regarded
as a ‘surrounding suburb’ like Woodstock (which is the
first suburb one encounters
when travelling eastwards out of the city
centre) because it is not contiguous to the CBD.  But then,
neither is Observatory
which is located beyond Salt River and
University Estate, neither of which is contiguous to the city centre
either.
[330]
On the other hand, the inner city suburbs of Bo-Kaap (also known as
Schotschekloof and on the southern slopes of Signal Hill),
Gardens,
Tamboerskloof, Oranjezicht, District Six, Vredehoek and Devils Peak
(all of which nestle between the foothills of Table
Mountain and the
southern side of the CBD) undoubtedly surround the city centre –
in fact, they are colloquially referred
to as the ‘City Bowl’.
[331]
The conundrum then is what the City intended to convey by the use of
the term ‘surrounds’ in relation to the CBD,
when it
presented the RZ designation to the Province for approval in 2010,
and what the Province intended the phrase to mean when
it put up the
designation to the National Minister for gazetting at the end of
2011.
THE
CONTEXT RELEVANT TO THE DESIGNATION OF THE 2011 RZ’s
[332]
As already stated, given that one is
dealing with legislation intended to advance the rights protected
under ss 25 and 26 of the
Constitution, the term must be interpreted
contextually and through the prism of the Constitution so as to
comply with the injunction
in s39(2) thereof to ‘promote the
spirit, purport and objects of the Bill of Rights.’
[96]
This will of necessity involve
consideration of the context in which the Notices were issued, but
the point of departure in relation
to the interpretation of the RZ’s
remains the empowering legislation – the SHA – and in
particular the principle
to which reference has already been made (in
s2(1)(i)(iv)) thereof,
viz
to promote the integration of housing
development into inner city areas.  That is a guiding principle
which will inform the
contextual setting.
[333]
The affidavit of Mr. Pogiso Molapo on behalf of the City provides
useful contextual detail in relation to the determination
of the
RZ’s.  At the time of deposing to his affidavit in July
2018 Mr. Molapo was the Manager for Social Housing and
Land
Restitution in the City’s Transport and Urban Development
Authority, and, on account of the more junior positions he
held
previously in relation to social housing, was well acquainted with
the City’s approach to social housing over a period
of the
previous 11 years or more.  He was in a position to depose to
direct knowledge of a number of facts relevant to this
matter.
[334]
In July 2010 Mr. Molapo, then employed
in the City’s Directorate of Land and Forward Planning,
prepared a report for the erstwhile
Executive Mayor, Ms. Patricia de
Lille, entitled ‘Areas to be Added to the Current Social
Housing Restructuring Zones.’
[97]
The document reflects that it
was approved by the City’s Housing Portfolio Committee on 31
May 2010 and was also vetted by
Mr. Molapo’s seniors.
[335]
The purpose of the report was given as follows:
‘
This
report seeks approval of the Additional Areas to be included to our
current Social Housing Restructuring Zones’,
while
the following was provided by way of an Executive Summary:
‘
In
terms of the
Social Housing Act, 16 of 2008
, Social Housing Projects
can only be implemented in Approved Restructuring Zones, otherwise
they will not receive Social Housing
Grant Funding from National
Government.  Municipalities are responsible for Demarcating
Restructuring Zones in their area
of jurisdiction which they must
submit via Provincial Government to National Government for
Promulgation.  In 2007, the City
of Cape Town demarcated certain
areas as Restructuring Zones (
Annexure
A)
.
Recently these demarcated areas have been found to be
inadequate and new areas contained in
Annexure
B
,
are proposed to be added to the current Restructuring Zones.’
[336]
Under the heading ‘
Motivation
’
Mr. Molapo explained in the report that the City had been involved in
social housing projects with three SHI’s (SOHCO, CTCHC
and
Communicare) and listed the names and localities thereof.  With
reference to Annexure B to the report, Mr. Molapo said
the following:
‘
The
Areas in Annexure B meets the criteria for Restructuring Zones but
were left out in the initial process of demarcating restructuring

zones.  This report seeks to add these areas to our current
restructuring zones areas.’
[337]
Annexure A to the report bore the heading:
‘
APPENDIX
1: PROVISIONAL RESTRUCTURING ZONES – CITY OF CAPE TOWN
’
,
and
continued as follows:
‘
In
accordance with the resolutions:
1.
of MEC
2.
Of the MAYCO of the City of Cape
Town
3.
and endorsement by the National
Department of Housing
The
areas in the Table below are designated as within a areas inhe table
below as Provisional Restructuring zones as defined in
the interim
policy.  All three parties in signing this part of the agreement
acknowledge that these areas are the only areas
which can access the
available Social Rental housing subsidy in accordance with the
interim social housing policy.  These
shall remain in force as
Restructuring Zones until and unless all three parties sign agreed
re-designation of the areas or the
social housing policy on
Restructuring Zones superseded by other relevant legislation or
policy.’
[338]
Then followed a table with the following columns and entries:
Spatial Areas
Key
Social/
Economic Node
Transport Access Route
Rail
Road Corridors
1.
CBD
and surrounds
(Salt River, Woodstock and
Observatory)
CBD
Southern Metro Line to CBD and
Southwards to Simonstown
Main Road Taxi Route
2.
Southern
Near –
Claremont,
Kenilworth, Rondebosch
CBD, Kenilworth
Southern Metro Line to CBD and
Southwards to Simonstown
Main Road Taxi Route
3
Southern
Central –
Westlake
–
Steenberg
Westlake – Blue Route-
Capricorn
Southern Metro Line to CBD and
Southwards to Simonstown
Main Road Taxi Route M3 and
M5
4
Northern
Near –
Milnerton
CBD
Southern Metro Line to CBD and
Southwards to Simonstown
Main Road Taxi Route M3 and
M5
5
Northern Central –
Bellville, Bothasig, Goodwood and surrounds
Bellville, Epping
Metro Line
N1 + Voortrekker Road
[339]
Annexure B to the report bore the heading:
‘
Proposed
Areas to be added to the Cape Town Restructuring Zones’
and contained a table in similar
format to Annexure A.  For present purposes I shall only record
the spatial areas listed therein:
‘
6.
South Eastern – Somerset West, Strand, Gordons Bay
7.
Southern – Strandfontein, Mitchells Plain, Mandalay and
surrounds
8.
Eastern – Brackenfell, Durbanville, Kraaifontein, Kuils River
9.
Cape Flats – Athlone and surrounds (Pinelands to Ottery)
10.
Far South – Fish Hoek, Simonstown
11.
Northern – Parklands and surrounds.’
[340]
Before turning to Mr. Molapo’s narrative in his affidavit in
respect of these annexures, I should point out that it
is obvious
that the report and annexures have been sloppily compiled.  Aside
from the obvious spelling and syntactical mistakes,
there are other
errors of detail.  For example, Spatial Area 4 (Northern
Milnerton) is manifestly not served by the Southern
Metro Railway
Line, nor the M3 and M5 highways and there is no Main Road in
Milnerton: the principal arterial routes are Koeberg
Road and Otto du
Plessis Drive.  It is also arguable that the key economic nodes
might be Paarden Eiland, Montague Gardens
and Century City, rather
than the CBD.
[341]
Mr. Molapo’s affidavit is comprehensive and suggests a clear
understanding of the SHA and social housing in general.
The
document runs to some 35 pages and I am therefore obliged to quote
selectively therefrom for purposes of addressing the
question at
hand.
‘
27.
Already, before the coming into force of the SHA, the City had a
social housing programme in place and had concluded agreements
with
various SHI’s.  To this end the City identified five areas
to be earmarked for social housing pursuant to an interim
policy that
had been agreed to by the then MEC, the Mayco of the City as well as
being endorsed by the national Department of Housing.
There was
agreement that these areas could access the available social rental
housing subsidy in accordance with the then
interim Social Housing
Policy.  These areas constituted the RZs proclaimed in
Government Notice 848 dated 2 December 2011
as provisional RZs and
which was subsequently substituted with the RZs contained in Notice
200 dated 15 December 2011.
28.
I prepared the report which informed the City’s approval of the
RZs as gazetted on 15 December 2011, a copy of which is
annexed
marked “
PM 2
”.  It is apparent from the
motivation that the City was intent on pursuing a strategy to
facilitate the provision of
rental accommodation in these areas for
persons of low income.  Three partnership agreements had been
concluded with SHIs
to achieve those goals.  I explained that
the City had a number of social housing pipeline projects in the
planning stage
and that the City wanted a number of RZs to be added
to enable the City to increase its pipeline project to assist more
people
in a number of areas not included in the initial proclamation.
I indicated that the areas in Annexure B had been left out
in
the initial process of demarcating RZs and that there were pipeline
projects being earmarked in various areas.  Though
one of the
pipeline project identified was located in Bo-Kaap, it was not
necessary for the City to seek Bo-Kaap’s inclusion
as a RZ
because it had already been included in the RZ identified as “Cape
Town CBD and surrounds (Salt River, Woodstock
and Observatory)”.
29.
The phraseology “and surrounds” was specifically used by
the City to ensure that no area surrounding an economic
hub, for
example, the CBD, would be specifically excluded.  Any
suggestion to the contrary is denied.  In other words
the City
would have the flexibility to identify land for the purposes of being
able to apply for RCG funding in relation to any
development that
falls into the “‘surrounds” as identified above.
This related to the following areas:
29.1
CBD and surrounds (Salt River, Woodstock and Observatory);
29.2
Northern Central - Bellville, Bothasig, Goodwood and surrounds;
29.3
Southern – Strandfontein, Mitchells Plain, Mandalay and
surrounds; and
29.4
Cape Flats - Athlone and surrounds (Pinelands to Ottery).
30.
Social housing developments located in “surrounds” have
taken place with the assistance of RCG funding.  For
example:
30.1
The
Belhar Gardens
Housing Project
falls
into the surrounding area of Bellville . . .
30.2
The
Elsiesriver social
housing development
also
is located in the Northern Central RZ in the area surrounding
Goodwood . . .
30.3
The
Glenhaven social
housing development
is
located in the Northern Central RZ in the area surrounding Bellville
. . .
31.
Funding from SHRA was obtained in relation to all of the
aforementioned housing developments.  This is demonstrative of

the City’s motivation for applying for the RZs without clearly
demarcated boundaries.  It allowed areas surrounding
economic
nodes to be eligible for grant funding.  More stringently
demarcated RZs would have the knock-on effect of ultimately
defeating
the objects sought to be achieved by RZs.  In this regard the
surrounding area, as contemplated by the City is even
more extensive
than what is contemplated by Dr. Odendaal’s “central Cape
Town”.
[98]
32.
In addition, the reference to Salt River, Woodstock, Observatory was
intended to be illustrative rather than dispositive.  To
the
extent that it is now contended that the identification of this RZ is
impermissibly vague, this is denied and will be addressed
in legal
argument.  None of the role players as a matter of fact regarded
it as being vague, until raised in relation to the
dispute which
forms the subject of this application.
33.
Pursuant to the memorandum that I prepared, on 28 July 2010 it was
resolved that the areas listed in Annexure B, as recommended,
be
approved by the City as RZs.  This was forwarded to the Province
and then sent to the office of the national Minister of
Human
Settlement (sic), whereafter it was gazetted.  No one, even at
this juncture, regarded the inclusion of “surrounds”
as
being too vague to be gazetted.
34.
At all material times the City (and other role players, including the
provincial Department of Housing . . . regarded the 2011
notices as
having legal efficacy and RCG funding was accessed from SHRA pursuant
thereto.  Prior to the dispute in relation
to the Tafelberg
site, no one had taken issue with this approach, and as far as the
City was concerned, when the motivation for
RZs had been done it was
at all material times contemplated that as far as the CBD RZ was
concerned it included - and was not necessarily
limited to - Sea
Point, Green Point, Oranjezicht, Vredehoek, District Six,
Observatory, Salt River, Woodstock, Maitland, Walmer
Estate and
University Estate, even though a number of these areas were not
specifically mentioned in the gazette.
35.
It was also not contemplated by the City that these RZs would only be
gazetted as “provisional RZs”.  It is
apparent from
the gazette that the RZs relate to areas so designated in all the
major metropolitan areas [in South Africa].  The
City has
understood the initial RZs to have been promulgated as provisional in
the sense that the City could then add further RZs,
which it then
did.  These RZs were unrelated to the RZs so designated in the
Gazette promulgated on 28 April 2017.  The
latter only related
to non-metropolitan areas and cannot be regarded as substitutes for
the RZs already gazetted.  The 2017
gazetted (sic) does not
relate to the City at all.
36.
I cannot speak for the other parties but when SHRA allocated the
funding in 2011 for the assessment of the viability of the
Tafelberg
site, it was consistent with, at the very least, my view at that time
as the representative of the City and that of Catherine
Stone, the
former Director for Spatial Planning & Urban Design that there
was no difficulty in SHRA doing this, because the
Tafelberg site
formed part of the CBD RZ.  This is consistent with the views
which Ms. August, from the provincial DHS, relayed
to the Premier.
As far as I am aware, there was agreement that such study
should be conducted.
37.
. . .
38.
After reservations were expressed and legal opinions obtained casting
doubts on the Tafelberg site falling within a demarcated
RZ, the City
decided to take steps in relation thereto to avoid any uncertainty
being created so that developments in RZs not be
compromised.  On
28 March 2017 the national and provincial governments were informed
of the City’s intent to have Cape
Town in its entirety declared
as a RZ so that affordable housing opportunities could be provided
wherever suitable land is available.
The media release is
annexed marked “PM 4”.  In this way the City’s
position could not be doubted
and the presence or absence of RZs
could not be invoked as an impediment to the City being able to
access RCG funding.  This
statement arose because of the view
expressed that Sea Point did not form part of the RZs, as proclaimed.
It was thus simply
a step to remove any ambiguity that may
exist that the CBD and surrounds as a RZ does not include areas such
as Sea Point.
39
. . .
40
. . .
41.
In summary, at all material times the City regarded the 2011
Government Notice 848, as corrected by Government Notice 900, as

providing for RZs in the metropolitan area.  The City disagrees
with the interpretation that the 2011 Gazettes should be regarded
as
“provisional” and the 2017 Gazette as final.  The
effect of such an interpretation would defy what the City,
province
and the national Minister intended with the 2011 classification.
Moreover, the 2017 Gazette relates to entirely
different areas
premised on different recommendations that did not emanate from the
City and is not a substitution of the 2011
Gazette.  If this
interpretation is found to be correct then there would be no RZ in
the City at all, and all the major metro
areas in the country would
have no access to funding under the SHA, for areas which fall within
the RZs as contemplated in 2011.
Argument that this interpretation is
misconceived will ensue at the hearing.’
[342]
I did not understand any of the Provincial functionaries who deposed
to affidavits to challenge the factual allegations made
by Mr. Molapo
in his affidavit.  Certainly, if the PDHS’ Ms. August
disagreed with the assertion that the City, the
Province and National
Government were
ad idem
as to the immediate applicability of
the RZ’s, and whether the Tafelberg site fell within the
surrounds of the CBD, one would
have expected her to say so.  She
did not.
[343]
Mr. Fagan SC relied heavily on the fact that the Notice published on
2 December 2011 contained the explanatory headnote that
the
restructuring zones were ‘provisional’ and were being
published for ‘public information’.  So,
the
argument went, the RZ’s were only provisional and could not be
regarded as binding.  That argument is, in my view,
not
sustainable for a variety of reasons.  Firstly, as Annexure JG
32 to Ms. Gooch’s affidavit demonstrates, on 29 June
2010, the
erstwhile MEC for Housing, Mr. Madikizela, and his officials in the
PDHS all supported the City’s designation of
the RZ’s.
Importantly, Mr. Molapo’s report of May 2010 was annexed
to the Province’s motivation to the
National Minister for the
declaration of the RZ’s in the City.  There is nothing
ambiguous in that report about the
status of the proposed RZ’s
and that is the uncontroverted evidence of Mr. Molapo in these
proceedings.
[344]
Secondly, as Mr. Molapo points out, funding from the SHRA was
advanced in 2011 for a preliminary study into the suitability
of the
property for social housing.  The SHRA would not have done so if
the property did not fall within a RZ and thereby
qualified for a
RCG: in such circumstances a study would have been a pointless waste
of public resources.  Thirdly, as Mr.
Molapo explains, the
designation was provisional only to the extent that it was the
intention of the City to add more zones to
its original
determination.  That intention did not mean that the declared
zones (including ‘Cape Town (and surrounds)’
)
would later fall away or be revised.  But Mr. Molapo goes
further in his affidavit, stating that all the interested parties

were in agreement that the notice had legal efficacy and that they
acted upon it.  Accordingly, in the absence of countervailing

evidence from its officials (which would manifestly have been
available to it), it is not open to the Province to seek to attack

this assertion in argument.
[345]
It is apparent from a reading of both December 2011 Notices that they
were, once again, the product of sloppy drafting and
inelegant use of
language, but they are what they are and the Court must make the best
that it can thereof.  One could hardly
seek to argue, for
instance, that the obvious misspelling of ‘Brackernfell’
or ‘Athloe’ in the second Notice,
voided it as there was
then reference to non-existent places.  The Notices must be
afforded a generous interpretation so as
to give them meaning which
will advance the constitutional right to housing under s26 of the
Constitution.  If one does so,
thereby eschewing the approach of
‘black-letter law’ interpretation, which no longer finds
application in our constitutional
jurisprudence, and if one seeks to
interpret the Notices in the context of the compelling, unchallenged
evidence of Mr. Molapo,
there can be little doubt that the argument
advanced by RTC must prevail.
[346]
In the result, I am satisfied that it has been conclusively
established by RTC that the Tafelberg site falls within a designated

restructuring zone as contemplated in the SHA.  It is therefore
entitled to the declaratory relief sought in para 14 of the
draft
order ultimately handed up by Mr. Hathorn SC.  This finding
leads to the further conclusion that the Cabinet erred in
not holding
so when it considered whether to resile from the sale to the Day
School.  Had the Cabinet properly considered
the law in the
context of the correct facts, it would have come to the further
conclusion that the Tafelberg site qualified for
a restructuring
grant as contemplated under the SHA and that the absence thereof
presented no impediment to the consideration of
a social housing
development on the site.
[347]
The issue of the availability of the
RCG was material to the argument advanced by RTC and other proponents
in favour of social housing
on the Tafelberg site and, accordingly,
material to the Cabinet’s decision not to resile from the deed
of sale on the basis
set out in para 1.4.1 of the Premier’s
Minute.  This constitutes a material error on the part of the
Province in coming
to its conclusion not to resile and that error
accordingly renders the decision not to resile reviewable under
ss6(2)(d) and 6(2)(e)(iii)
of PAJA.
[99]
That finding renders it
unnecessary to decide upon the other grounds of review put up by RTC
and the National Minister in relation
to the decision not to resile.
There is, however, one further aspect which requires
consideration in relation to that decision.
WAS
THERE AN OBLIGATION ON THE PROVINCE TO CLARIFY THE UNCERTAINTIES?
[348]
The obvious question that arises from the Premier’s Minute, is
whether the alleged uncertainties with which the Province
was
confronted when considering whether to resile or not, were capable of
being addressed?  The formulation of those uncertainties
in the
Minute leads one to the obvious question – ‘But why
didn’t you ask for clarification?’
[349]
The SHA in general, and the guiding principles in s2 and Chapter 2
thereof in particular, define the roles and responsibilities
of the
three spheres of government and stress the necessity for co-operation
between these principal role-players in the field
of social housing.
Furthermore, Mr. Molapo’s evidence and the annexures to
his affidavit demonstrate the link the erstwhile
MEC for Human
Settlements played between the City and DHS in relation to the
proclamation of the 2011 RZ’s.
[350]
This begs the question why the Province took no steps to clarify the
uncertainties which evidently troubled it?  Its
own MEC for
Human Settlements and his functionaries would pre-eminently have been
in a position to assist but, if not, why did
Cabinet not direct
enquiries to the DHS and the National Minister to clarify the alleged
provisionality of the 2011 Notices and
the extent of the RZ declared
under ‘Cape Town and surrounds’?  The obvious reason
seems to be that it did not
want to be privy to the true facts.  That
would be demonstrative of
mala fides
and render the decision
reviewable under s6(2)(e)(v) of PAJA.
[351]
However, since this was neither pleaded nor argued by RTC, the Court
is precluded from pursuing such a line of enquiry.  But
what the
failure to ask these questions does show is that the Province brought
itself within the ambit of s6(2)(e)(iii) of PAJA
on this basis too,
given that relevant considerations which were readily capable of
being established were not considered.
[352]
In RTC’s supplementary founding affidavit Ms. Adonisi refers to
additional documents which were discovered by the Province
in terms
of Rule 53, and specifically to a transcript of the meeting at which
the Cabinet considered whether to resile from the
sale or not.  She
points out that the transcript reveals that the aforesaid Ms. August,
the Director of Affordable Housing
in the PDHS, ‘specifically
alerted the cabinet to the fact that there was, at the time of the
decision being made, a specific
opportunity for changes to
restructuring zones to be effected expeditiously
.
’
[353]
Similarly, in the affidavit put up by the SHRA in the National
Minister’s application, its CEO Mr. Rory Lee Gallocher
(who
expressed an unequivocal view that the Tafelberg property fell within
the designated ‘Cape Town and surrounds’
RZ and thus
qualified for a RCG) said the following in relation to the Province’s
proposition that the property did not fall
within the RZ:
‘
112.
But even if the Province were correct that the Tafelberg site fell
outside of the existing restructuring zone, this cannot
justify its
decision or render it reasonable.
112.1
It is not uncommon for provinces and municipalities to identify and
propose additional restructuring zones for expansion of
the social
housing programme. SHRA and the [DHS] then consult with the provinces
and municipalities on their identified proposed
restructuring zones.
112.2
The SHRA and [DHS] are generally extremely receptive of requests by
municipalities and provinces to earmark areas as restructuring
zones.
This is particularly so when, as in this case, the site in question
meets the requirements of a restructuring zone and must
simply be
classified as such to be developed as a social housing programme or
project.
112.3
In other words, the concept of restructuring zones is not intended as
obstacle (sic) to the development of social housing,
as the approach
of the Province in this case might suggest. On the contrary, while
the approval of a restructuring zone commences
with a decision from
the municipality in terms of its municipal planning functions, it is
a collaborative effort and is intended
to promote the application of
the
Social Housing Act and
the availability of social housing.
113.
In the circumstances, if the restructuring zone issue were an
obstacle at all for the use of the site for social housing, one
would
have expected the Province to consult with the City, the [DHS] and
the SHRA on whether the restructuring zone could be extended
to
include the area in which the Tafelberg site is located.
113.1
Had that been done, the SHRA would certainly have vigorously
supported the extension of the restructuring zone to include
the area
in which the Tafelberg site is located. It would have been surprising
if the City or [DHS] adopted any a (sic) different
view.
113.2
But the Province did not do so. It appears to have made no efforts at
all to determine whether the restructuring zone could
be extended (or
a new restructuring zone proclaimed) to cover the Tafelberg site.
113.3
Indeed, the Province itself recognised in the reasons that it offered
for the decision that the ‘National Minister may
be approached
to amend the Restructuring Zone Designations’. However, it
offers no explanation at all as to why it did not
do so.
113.4
Instead, it chose to use the fact that the site was (in its view)
outside a restructuring zone as a basis to refuse to use
the site for
social housing. This was in breach of the Province’s
obligations.’
[354]
In their heads of argument on behalf of the National Minister counsel
referred at length to the record of the deliberations
of the Cabinet
referred to above.  They highlight the fact that the meeting of
the Cabinet on 22 March 2017 was attended by,
inter alia,
Ms.
Gooch and the legal adviser in the Office of the Premier, Ms. Fiona
Stewart, both of whom made presentations to the meeting.
Ms.
Stewart advised the meeting of the advice that the Province had
received from Mr. Fagan SC, in an opinion requested in
2017 for the
purposes of informing the decision whether to resile or not.
[355]
Ms. Stewart informed the meeting that the advice received from
counsel in relation to the ‘CBD and surrounds’
question
was to the effect that the surrounds were limited to Salt River,
Woodstock and Observatory.  She did, however, point
out to the
meeting that there was disagreement expressed by City officials as to
the meaning of ‘surrounds’ and she
went on to say that it
was in any event open to interpretation as to whether Sea Point fell
within the definition of ‘CBD’.
It appears to have
been Ms. Stewart’s understanding (which coincided with that of
counsel) that the remote geographical
location of Sea Point –
5km by road from the CBD – was what made it difficult to
include it in the definition of the
CBD on any reasonable
interpretation.  She also based her view on the fact that social
housing projects had previously been
approved in all areas save for
the area under consideration, namely the Main Road Sea Point
Precinct, leading her to conclude that
the area in question did not
fall in a RZ.
[356]
Ms. Stewart went on to inform the Cabinet that there was no doubt
that the RZ’s were about to be amended, due to problems
that
had arisen in relation thereto, and that she had little doubt that
such amendment might incorporate far wider areas.  She
frankly
informed the Cabinet that, on the issue as to the definition of ‘CBD
and surrounds’ she could not offer a decisive
answer one way or
the other saying that it was open to interpretation – ‘I
cannot offer a 100% answer one way or the
other.’  It
cannot be disputed then that the Cabinet decision not to resile was
taken in light of the ambiguity pointed
out to it by its advisers,
together with knowledge on the part of the Cabinet and the Premier
that there was likely to be an imminent
amendment to the list of
present RZ’s, which might well include Sea Point expressly
within a designated RZ.
[357]
Counsel for the National Minister also referred the Court to the fact
that Ms. August had informed the Cabinet that, at a
meeting with the
DHS a week earlier, the latter had requested that any changes to
potential RZ’s be ‘fed through as
soon as possible, so
that it can link to the current gazetting that the National Minister
is about to do for the non-metro [RZ’s]’
.
Cabinet
was thus advised of the imminent opportunity for an adjustment to the
Cape Town RZ because there was a process in place
which was ‘kind
of happening at a National level and I also have to say that the City
agrees that they have indicated that
they would change the [RZ]
because it was always intended that Sea Point be included in terms of
the history of that particular
Tafelberg site.’
[358]
Reverting to the hypothetical question posed earlier of Cabinet –
‘But why didn’t you ask for clarification?’
–
there is no demonstrable answer forthcoming out of the evidence
placed before the Court.  Rather, Cabinet chose to
ignore the
realities of the situation: it knew that its own advisers were not
ad
idem
on ‘Cape Town and surrounds’ – either as
to the intended extent of the surrounds or whether Sea Point fell
within
the CBD; it knew that the City (which is the initiator of any
process to declare a RZ) held a diametrically opposed view on that

issue; it knew that there were moves afoot which would clarify, once
and for all, whether the Tafelberg site fell under a RZ; and
it knew
that it was open to the Province to participate in that process.
[359]
Yet, the Provincial Cabinet did not
seek clarity from those who could provide the answers (its own MEC
for Human Settlements and
the City), nor did it await the imminent
outcome of the National Ministerial process.  Rather, it made a
decision in circumstances
where it had failed to properly interrogate
a factor which it considered material to its determination of the
decision to resile
and that failure impacted on the rationality of
the entire process
.
[100]
On that basis, the decision not
to resile from the sale must be regarded as irrational and is liable
to be reviewed on this basis
too.
[360]
I shall revert to RTC’s application for a
mandamus
and
supervisory interdict later in this judgment and turn now to consider
the relief sought by the National Minister.
BACKGROUND
TO THE NATIONAL MINISTER’S CASE
[361]
The background facts relied upon by counsel for the National Minister
in their argument are, in the main, set out above in
relation to
RTC’s application.  To that I would add the following.  In
May 2011 (and after Mr. Carlisle had announced
that the Tafelberg
property had been added to the Regeneration Programme) a meeting was
convened in Cape Town at which the PDHS,
the City and various NGO’s
were present.  It was then agreed that a number of properties,
including Tafelberg, would
be investigated for purposes of
establishing whether they met the requirements for inner-city
commercial development in terms of
the Regeneration Programme.  So
much for the professed uncertainty in 2017 as to whether Sea Point
fell under ‘the CBD
and surrounds.’
[362]
Pursuant to that agreement various pilot studies were undertaken,
including an urban design report in October 2011 by an organization

known as ‘City Think Space’, which concluded that the
site was suitable for a mixed-use development comprising business,

retail, restaurant and at least 155 residential units.
[363]
During the following month, November 2011, NASHO presented a
feasibility study to the Province in relation to the Tafelberg

property and the Woodstock Hospital site, which was also being
considered for a social housing development.  Counsel for the

National Minister highlighted the following aspects of the NASHO
study:
363.1. Although the utilisation of the
Tafelberg property for social housing purposes through a long term
lease arrangement would
yield minimal income for the Province, the
on-going maintenance expenses in respect of the property would be
eliminated and there
would be long-term social benefits.  These
included meeting the Regeneration Programme’s social
objectives, the avoidance
of gentrification costs and the increase in
the land value.
363.2. The Tafelberg and Woodstock
Hospital sites should be retained in public ownership in order to
realise social objectives,
and other properties with more commercial
appeal (such as the Artscape Precinct on the Foreshore) should be
utilised to realise
immediate income objectives, namely the funding
of budgetary shortfalls within the DTPW.
363.3. NASHO also emphasized that the
housing gap in Cape Town was greater than anywhere else in the
country, thereby rendering
Cape Town the most segregated city in the
country.  Social housing was proposed as the best vehicle in
order to achieve social
cohesion and spatial integration while
addressing the high demand for rental properties in Cape Town at that
time.
363.4. On 26 September 2012, NASHO, in
conjunction with the Cape Town Partnership, addressed correspondence
to the Premier in support
of the utilisation of the Tafelberg
property for social housing purposes.
[364]
These facts demonstrate that from an early stage in the discussions
relating to the disposal of the property, social housing
was very
much on the agenda.  We know too that in March 2013 the HOD in
the PDHS urged the DTPW to consider the use of the
property for
social housing, believing that it was suitable for such a project.
Importantly, we have the remark in May 2013
by Mr. Carlisle at
the meeting with his Cabinet colleague, Mr. Madikizela, that the
Tafelberg property was not available for consideration
as a housing
development and his firm stance in April 2014 in the interview with
Mr. Kramer that there would be ‘No RDP in
the CBD
.
’
All of these events demonstrate that there was significant
interest in and lobbying for the use of the Tafelberg site
for
affordable housing, that the Province was alive thereto and that it
was routinely opposed thereto.
[365]
Mr. Jamie SC also stressed the fact that on 18 May 2015 the PDHS and
DTPW concluded a Memorandum of Understanding (“MOU”)

which was governed by the so-called ‘Standard Operating
Procedures for the Release of Immovable Properties in Custodianship

of the [DTPW] and [PDHS]’ (“the SOP”)
,
and
highlighted the following extracts from the SOP:
‘
C.
The Departments wish to allocate certain provincial State land under
the custodianship of the DTPW, for human settlement development
and
to collaborate with each other in this regard;
D.
The Provincial Cabinet has approved such collaboration in principle;
E.
The Departments have concluded a memorandum of understanding that
will form the basis for the collaboration between them in order
to
make the identified provincial State land available to the market for
human settlement development purposes.
1.2.
When DTPW identifies properties that can possibly be made available
for human settlement or properties it considers as surplus

properties, it will first consult the other provincial user
Departments to determine whether those Departments have a need for

such properties. If none of the other provincial users have a need
for such properties, DTPW will approach the [DHS] in writing
to
request [DHS] to consider such land to be made available for human
settlement development. If [DHS] agrees to such properties
being made
available for human settlement development, the process of obtaining
approval to release the property for human settlement
purposes will
be initiated.’
[366]
As I have already demonstrated earlier in this judgment, the DTPW
paid lip-service to the SOP when it commenced the EOI phase
of the
disposal of the Tafelberg site.  It was only at a much later
stage, and after the Day School had been identified as
the
prospective purchaser, that the PDHS was prevailed upon to agree to
withdraw its interest in the property.
DEVELOPMENTS
AFTER THE COURT ORDER OF 5 MAY 2016
[367]
Subsequent to the agreed court order of 5 May 2016, the DTPW
purported to publish (on 13 May 2016) a fresh notice calling
for
public comment on the proposed sale to the Day School.  As part
of that process the prospect of social housing on the
site was
raised.
[368]
On 29 July 2016 the Provincial Cabinet resolved that it was:
‘
not
able to meaningfully consider the rationality of comments that have
been submitted in terms of the re-opened public participation

process, without a full financial model with respect to the
implications of the construction/development of social housing units

on the said site and that this has accordingly now been requested.’
[369]
Accordingly, the Cabinet requested a full financial model from the
DTPW regarding the implications of the construction and
development
of social housing on the property, in order that it could properly
consider the responses to the second notice.  Having
concluded
its financial model, on 18 November 2016 the DTPW published a notice
in Provincial Gazette no. 7703 advertising the model,
affording
access thereto and inviting public comment thereon by 30 January
2017.
[370]
The National Minister’s counsel pointed out that the financial
model that was so published was a concise document of
some three
pages, in which it was concluded that the cost of providing social
housing on the property exceeded the cost of developing
comparative
schemes.
[371]
In February 2017 NASHO submitted its representations (a 16-page
document) to the Province in response to the November 2016
notice and
commented positively on the prospect of social housing, claiming that
its model showed:
‘
that
both the Province and the City can achieve a win-win (sic) in which a
large proportion of the site is protected for social
housing but
integration is achieved with sectional title units for sale, the
school site is maintained for the original proposal
for a private
school.  The new community is also developed and social cohesion
is supported under the expert knowledge and
social commitment of a
credible and experienced SHI.  In doing so the Province will
forfeit a relatively small part of the
capital sum they hope to
achieve from an outright sale but they will ensure the use of the
site in the longer term for its important
social and economic
development and urban regeneration objectives.’
[372]
The Day School made representations on the financial feasibility of
social housing on 15 February 2017 and RTC did likewise
on 15 March
2017 – both sets of representations being lodged after the
designated closing date.  The former sought to
demonstrate why a
social housing project was unaffordable while the latter went the
other way.
[373]
As already pointed out, the Cabinet decision not to resile from the
sale was taken on 22 March 2017 and made public on 4 April
2017.  In
the intervening period, and on 30 March 2017, the National Minister
wrote the letter already referred to, in which
she emphasized the
national objective that had to be achieved through the development of
the property for social housing.  Stating
that her intention was
to pursue that objective through the implementation of the Social
Housing Policy and the SHA, the National
Minister then invoked s5 of
IGRFA, by stating, as we have already seen, that she had been
following the public discourse and engagement
between the various
stakeholders and that she was then obliged to intercede.  The
subsequent exchanges between the Premier
and the National Minister
have also been set out earlier in this judgment.  The response
by the Premier to the National Minister’s
application is at
various levels.
[374]
Firstly, there is the relief sought by the National Minister for a
declaratory order that the Province’s failure to
inform and
consult National Government of the intention to dispose of the
Tafelberg site, constituted a contravention of the Province’s

obligations under Chapter 3 of the Constitution and hence under
IGRFA.  The Province’s response to this assertion is
that
there was simply no legal duty on it to consult and engage with
National Government prior to disposing of immovable property
which
belongs to it – a sort of ‘I can do what I want with my
property provided I comply with the WCLAA’ stance.
[375]
Secondly, there is the relief claiming a further declaratory order
that there is an intergovernmental dispute between all
three spheres
of government within the ambit of s1 of IGRFA, relating to the sale
(or intended sale) of the Tafelberg site.  The
response to this
is that the grounds advanced for the declaratory order are
effectively traversed by the review relief sought by
the National
Minister in addition to the IGRFA relief.
[376]
Thirdly, the National Minister seeks an order directing the Province
and the City to engage with her and the DHS in a dispute
resolution
process, as contemplated under chapter 3 of the Constitution and as
regulated by IGRFA.  The response to this from
the Province is
that the duty of engagement in such a process is only obligatory if
the relief in the first two prayers is competent.
[377]
Fourthly, in the original notice of motion the National Minister
sought interdictory relief against the Province
pendent lite
,
so as to ensure that the Tafelberg property was not transferred to
the Day School pending finalisation of the intended dispute

resolution process, alternatively the final determination of this
application.  That relief was partly covered by para 6 of
the
order of Dolamo J of 5 May 2016 to which the parties agreed: the MEC,
the Premier and the Day School undertook not to give
and take
transfer of the property until the expiry of two months after receipt
by RTC and the National Minister of the decision
not to resile.
[378]
Given the fact that the court order contemplated time frames for the
filing of any review applications in the event that the
Province
decided not to resile, and given that those time frames were
ultimately complied with, there is an undertaking in place
which
renders this relief moot at this stage.
[379]
Lastly, there is the relief sought in prayer 4 of the draft order.  I
have already explained how the correct state of
affairs was
established: that relief has accordingly fallen away.  I shall
proceed to deal with the National Minister’s
application
shortly, but before I do so it is necessary to consider the
legislation (and the interpretation thereof) which underpins
it.
CHAPTER
3 OF THE CONSTITUTION
[380]
Chapter 3 of the Constitution is entitled ‘Co-Operative
Government’ and comprises just two sections, which read
as
follows:
‘
40.
Government of the Republic
(1)
In the Republic, government is
constituted as national, provincial and local spheres of government
which are distinctive, interdependent
and interrelated.
(2)
All spheres of government must
observe and adhere to the principles of this Chapter and must conduct
their activities within the
parameters that the Chapter provides.
41.
Principles of co-operative government and intergovernmental relations
(1)
All spheres of government and all organs of state within each sphere
must –
(a)
preserve the peace, national unity and the indivisibility of the
Republic;
(b)
secure the well-being of the people of the Republic;
(c)
provide effective, transparent, accountable and coherent government
for the Republic as a whole;
(d)
be loyal to the Constitution, the Republic and its people;
(e)
respect the constitutional status, institutions, powers and functions
of government in the other spheres;
(f)
not assume any power or function except those conferred on them in
terms of the Constitution;
(g)
exercise their powers and perform their functions in a manner that
does not encroach on the geographical, functional or institutional

integrity of government in another sphere; and
(h)
co-operate with one another in mutual trust and good faith by –
(i)
fostering friendly relations;
(ii)
assisting and supporting one another;
(iii)
informing one another of, and consulting one another on, matters of
common interest;
(iv)
co-ordinating their actions and legislation with one another;
(v)
adhering to agreed procedures; and
(vi)
avoiding legal proceedings against one another.
(2)
An Act of Parliament must-
(a)
establish or provide for
structures and institutions to promote and facilitate
intergovernmental relations; and
(b)
provide
for appropriate mechanisms and procedures to facilitate settlement of
intergovernmental disputes.
[101]
(3)
An organ of state involved in an
intergovernmental dispute must make every reasonable effort to settle
the dispute by means of mechanisms
and procedures provided for that
purpose, and must exhaust all other remedies before it approaches a
court to resolve the dispute.
(4)
If a court is not satisfied that
the requirements of subsection (3) have been met, it may refer a
dispute back to the organs of
state involved.’
[381]
In
Premier,
Western Cape
[102]
the Chaskalson P discussed the
purpose, and the approach to the interpretation, of Chapter 3:
‘
[50]
The principle of co-operative government is established in s40 where
all spheres of government are described as being “distinctive,

interdependent and interrelated”.  This is consistent with
the way powers have been allocated between different spheres
of
government.  Distinctiveness lies in the provision made for
elected governments at national, provincial and local levels.
The
interdependence and interrelatedness flow from the founding provision
that South Africa is “one sovereign, democratic
State”,
and a constitutional structure which makes provision for framework
provisions to be set by the national sphere of
government.  These
provisions vest concurrent legislative competences in respect of
important matters in the national and
provincial spheres of
government, and contemplate that provincial executives will have
responsibility for implementing certain
national laws as well as
provincial laws.
[51]
. . .
[52]
. . .
[53]
The national government is also given overall responsibility for
ensuring that other spheres of government carry out their
obligations
under the Constitution.  In addition to its powers in respect of
local government, it may also intervene in the
provincial sphere in
circumstances where a provincial government “cannot or does not
fulfil an executive obligation in terms
of legislation or the
Constitution”.  It is empowered in such circumstances to
take “any appropriate steps to
ensure fulfilment” of such
obligations.
[54]
The provisions of chap 3 of the Constitution are designed to ensure
that in fields of common endeavour the different spheres
of
government co-operate with each other to secure the implementation of
legislation in which they all have a common interest.
The
co-operation called for goes so far as to require that every
reasonable effort be made to settle disputes before a court
is
approached to do so.
[55]
Co-operation is of particular importance in the field of concurrent
law-making and implementation of laws.  It is desirable
where
possible to avoid conflicting legislative provisions, to determine
the administrations which will implement laws that are
made, and to
ensure that adequate provision is made therefor in the budgets of the
different governments.
[56]
Principles of co-operative government and intergovernmental relations
are dealt with in s41 of the Constitution.  In addition
to
provisions setting common goals for all spheres of government
requiring co-operation between them in mutual trust and good faith,

including avoiding legal proceedings against one another, s41(1)(g)
requires that:
“
All
spheres of government and all organs of State within each sphere must
. . . exercise their powers and perform their functions
in a manner
that does not encroach on the geographical, functional or
institutional integrity of government in another sphere.”
This
provision reflects a requirement of [Constitutional Principle] XXI
that:
“
The
national government shall not exercise its powers (exclusive or
concurrent) so as to encroach upon the geographical, functional
or
institutional integrity of the provinces.”
[103]
[57]
Section 41(1)(g) is concerned with the way power is exercised, not
with whether or not a power exists.  That is determined
by the
provisions of the Constitution.  In the present case what is
relevant is that the constitutional power to structure
the public
service vests in the national sphere of government.
[58]
Although the circumstances in which s41(1)(g) can be invoked to
defeat the exercise of a lawful power are not entirely clear,
the
purpose of the section seems to be to prevent one sphere of
government using its powers in ways which would undermine other

spheres of government, and prevent them from functioning effectively.
The functional and institutional integrity of the different

spheres of government must, however, be determined with due regard to
their place in the constitutional order, their powers and
functions
under the Constitution, and the countervailing powers of other
spheres of government.’  (Internal references
omitted.)
[382]
In the
Certification
case
[104]
the Constitutional Court, in
commenting on the ambit of Constitutional Principle XXII, observed
that the principle of co-operative
governance does not diminish the
autonomy of any given sphere of government.  Rather, its purpose
is to recognise the place
of each independent sphere within the whole
sphere of governance and, importantly, the necessity for
co-ordination between such
spheres so as to ensure the functionality
of the sphere of governance as a whole.
[383]
In summary then, Chapter 3 makes it
mandatory for all spheres of government to co-operate with each other
in order to ensure the
implementation of legislation and policies in
which they have a common interest.  That co-operation takes
place within ‘a
constitutional structure which makes provision
for framework provisions to be set by the national sphere of
government.’
[105]
I understand this to mean that
where there is, for instance, national legislation that requires
implementation at a provincial level
by a provincial department, a
minister in national government is entitled to raise the issue with
the province and ‘set the
agenda’, as it were.
WHAT
IS IN DISPUTE?
[384]
In this matter, given the provisions of Part A of Schedule 4 to the
Constitution, both the national and provincial spheres
of government
have concurrent legislative competence and functionality in respect
of housing.  As I understand the case for
the National Minister,
she relies, in general, on the powers and obligations imposed on her
under the
Housing Act to
advance the general principles applicable to
housing development and, more specifically, the functions and
responsibilities with
which she is charged under
s3
of the SHA, to
have a say in the sale of the Tafelberg property to the Day School.
[385]
The Province, on the other hand, relies on its defined roles and
responsibilities under
s4
of the SHA to resist the National
Minister’s interference, claiming that the sale was lawfully
conducted under the WCLAA,
that GIAMA was not applicable to the
property and that the disposal of the property is in any event a
‘done deal’ with
an outside party in respect whereof the
National Minister manifestly has no interest.  In other words,
the Province adopts
the position that the sale of the property is
none of the National Minister’s business and that there is
therefore nothing
to talk about.
[386]
It is as well, therefore, to commence by reciting the respective
statutory roles and responsibilities of these two spheres
of
government under the SHA:
“
3.
Roles and responsibilities of national government.
(1)
National government, acting
through the Minister must –
(a)
create and uphold an enabling
environment for social housing, by providing the legislative,
regulatory, financial and policy framework
for the delivery of social
housing;
(b)
ensure compliance with its
constitutional responsibilities;
(c)
address issues that affect the
growth, development or sustainability of the social housing sector;
(d)
establish with provinces and
municipalities institutional capacity to support social housing
initiatives;
(e)
institute and fund the social
housing programme as a national housing programme to promote the
development and supply of social
housing stock for low to medium
income persons;
(f)
designate restructuring zones
submitted by provinces and identified by municipalities and
specifically provided for in a municipality’s
integrated
development plan contemplated in
section 25
of the
Local Government:
Municipal Systems Act, 2000
. . . and may, where appropriate, after
due notice in the
Gazette
,
withdraw such designation;
(g)
establish capital and
institutional investment grants;
(h)
. . .
(i)
. . .
(j)
determine norms and standards to
be adhered to by provinces and municipalities . . .’
4.
Roles and responsibilities of
provincial government
(1)
Every provincial government,
through its MEC, must-
(a)
ensure fairness, equity and
compliance with national and provincial social housing norms and
standards;
(b)
ensure the protection of
consumers by creating awareness of consumers’ rights and
obligations;
(c)
facilitate sustainability and
growth in the social housing sector;
(d)
mediate in cases of conflict
between a social housing institution or other delivery agent and a
municipality, if required;
(e)
submit proposed restructuring
zones to the [National] Minister;
(f)
monitor social housing projects
to ascertain that relevant prescripts, norms and standards are being
complied with;
(g)
approve, allocate and administer
capital grants, in the manner contemplated in the social housing
investment plan, in approved projects;
(h)
ensure that the process
contemplated in paragraph (g) is conducted efficiently;
(i)
administer the social housing
programme, and may for this purpose approve –
(i)
any projects in respect thereof;
and
(ii)
the financing thereof out of
money paid into the accredited bank account of the province . . .’
[387]
It will be seen that the sections in question predicate a situation,
broadly speaking, where the sphere of national government
is
responsible for the high-level planning, financing and initial
implementation of social housing policy, while the sphere of

provincial government is responsible for the identification of
appropriate zones where this form of housing can be located, the

procurement thereof by recommendation to the DHS for the declaration
of RZs, the conclusion of agreements with SHIs to establish
the
designated projects, and ultimately the provision of the necessary
finance to cover the cost thereof through the availability
of RCGs,
which in turn are sourced through National Government.
[388]
Against that background, and given that there are distinct areas of
responsibility and obligation accorded to each sphere
of government
under
ss3
and
4
of the SHA, it might have been expected by the
Legislature that the room for conflict between the national and
provincial spheres
was rather limited – after all, both spheres
are enjoined to pursue the general principles articulated under
s2
of
the SHA, which commences with the injunction that they ought both to
give priority to the needs of low and medium income households,
and
then proceeds to set out a number of guiding principles under which
that statutory goal should be achieved.  But, as the
facts of
this case already set out demonstrate, there is indeed room for
disagreement, both at the overarching level of policy
and planning as
well as at the more fundamental level of application and
implementation of the SHA.
[389]
Reduced to its bare minimum, the current dispute centres around a
demand from the National Minister that she was entitled
to be
consulted by the Province prior to its decision to sell the property
to the Day School, and a retort from the Premier that
the property
was an immovable asset which could be disposed of by the Province at
its discretion, provided only that it complied
with the WCLAA, which
the Premier claimed was the only regulatory instrument applicable to
the disposal.  I shall deal with
the substance of the dispute
hereunder.
[390]
There is no issue between the National Minister and the Province
that, if there is indeed a dispute between the two spheres
of
government in relation to a matter of mutual constitutional interest,
such as housing, such an intergovernmental dispute falls
to be
resolved under IGRFA.  I shall thus briefly outline the IGRFA
principles and procedure applicable in the circumstances.
THE
APPLICATION OF IGRFA
[391]
In terms of
s4
of IGRFA the object of the legislation is:
“
to
provide within the principle of co-operative government set out in
Chapter 3 of the Constitution a framework for the national

government, provincial governments and local governments, and all
organs of state within those governments,
to
facilitate co-ordination in the
implementation
of policy and legislation
,
including –
(a)
coherent government;
(b)
effective provision of services;
(c)
monitoring implementation of
policy and legislation; and
(d)
realisation of national
priorities.”  (Emphasis added)
[392]
S5 of IGRFA enjoins all spheres of government, in conducting their
affairs, to achieve that object of the act by:
‘
(a)
taking into account the circumstances, material interests and budgets
of other governments and organs of state in other governments,
when
exercising their statutory powers or performing their statutory
functions;
(b)
consulting other affected organs of state in accordance with formal
procedures, as determined by any applicable legislation,
or accepted
convention or as agreed with them or, in the absence of formal
procedures, consulting them in a manner best suited
to the
circumstances, including by way of –
(i)
direct contact; or
(ii)
any relevant intergovernmental structures;
(c)
co-ordinating their actions when implementing policy or legislation
affecting the material interests of other governments;
(d)
avoiding unnecessary and wasteful duplication or jurisdictional
contests . . .’
[393]
In s1 of IGRFA an ‘intergovernmental dispute’ is defined
as:
“
a
dispute between different governments or between organs of state from
different governments concerning a matter-
(a)
arising from –
(i)
a statutory power or function
assigned to any of the parties; or
(ii)
an agreement between the parties
regarding the implementation of a statutory power or function; and
(b)
which is justiciable in a court
of law, and includes any dispute between the parties regarding a
related matter; . . .’
[394]
In Part 5 of the ‘Intergovernmental
Dispute Prevention and Settlement: Practice Guide: Guidelines for
Effective Conflict Management’
[106]
,
an intergovernmental dispute is described as follows:
‘
a
specific disagreement concerning a matter of fact, law or policy in
which a claim or assertion of one party is met with a refusal,

counter-claim or denial by another’
and
which
‘
[i]mplies
a specific impasse on which the parties cannot agree, rather than a
broad and general disagreement about a problem . .
.’
[395]
In the event that such an intergovernmental dispute arises it must be
resolved in accordance with Chapter 4 of IGRFA which
is entitled
‘Settlement of Intergovernmental Disputes.’  Under
this Chapter, s40 imposes a positive duty on the
parties to such a
dispute, firstly, to make every reasonable effort to avoid any
dispute in the exercise of their respective statutory
powers and/or
functions, and, secondly, to settle such a dispute without resorting
to judicial proceedings.  Thereafter, and
in the event that the
dispute is persisted with, IGRFA provides for a procedure which has
the hallmarks of alternate dispute resolution.
It is not
necessary to detail them for present purposes, other than to state
that a degree of comity and mutual respect is
expected of the
parties.
[396]
Finally, s45 of IGRFA deals with the institution of judicial
proceedings and precludes any sphere of government from instituting

such proceedings:
‘
unless
the dispute has been declared a formal intergovernmental dispute in
terms of section 41 and all efforts to settle the dispute
in terms of
this Chapter were unsuccessful.’
DID
THE DHS HAVE AN INTEREST IN THE SALE?
[397]
At first blush one might be inclined
to be dismissive of the National Minister’s professed interest
in the sale: after all
the Province was involved in the sale of state
land registered in its name, and the obvious national departments
which come to
mind in that context for the purposes of potential
consultation are the Department of Public Works and the Department of
Agriculture,
Land Reform and Rural Development, to whom reference is
made in s3(3)(c) of the WCLAA.
[107]
I say ‘potential
consultation’, because it is the local office of each of those
national departments at which the provincial
legislation required
notice to be given of an anticipated disposal.
[398]
On the other hand, if one were to consider the disposal through the
lens of GIAMA (which we know the Province did not) then
the Minister
of Public Works (as the national minster responsible for the
enforcement of that statute) might be said to be the
person with whom
consultation might be required.
[399]
But it seems to me that a purposive interpretation of Chapter 3 of
the Constitution would not be achieved by adopting a constrained

approach to the reading of the statute being applied by the Province.
The proper approach, as advocated in cases such as
Goedgelegen
and
Scribante
, is to ‘prefer a generous construction
over a merely . . . legalistic one’ and to avoid a ‘blinkered
peering
at an isolated provision.’
[400]
From as early as 2013 both the MEC and the functionaries in the
Province (both the DTPW and the PDHS) knew that there was
public
interest in the utilisation of the site for affordable housing –
the HOD in the PDHS had made this clear in his letter
of 26 March
2013, while the MEC himself had responded to this interest in April
2014, by dispelling the notion of the Province
providing any form of
affordable housing in central Cape Town (‘no RDP in the CBD’).
It has to be said therefore
that affordable housing (in
whatever form) was very much on the table for negotiation, but was
ignored by the Province prior to
its November 2016 decision to sell
to the Day School.
[401]
However, when the Province embarked on its revised public
participation process after the order of Dolamo, J in May 2016,
it
changed tack and specifically undertook an investigation into the
feasibility of social housing on the Tafelberg site.  The

consequences of this investigation informed the Province’s
decision not to resile from the sale.  And, in its reasons

supporting that decision, the Province not only had doubts about the
financial viability of such a project, but also raised issues

indicating uncertainty around specific aspects of social housing: the
status of the RZs, the extent of ‘Cape Town and surrounds’

and the potential non-availability of RCG capital.
[402]
In
Grootboom
[108]
Yacoob J observed that ‘national
government bears the overall responsibility for ensuring that the
State complies with the
obligations imposed upon it by s26’ of
the Constitution.  The learned judge went on to deal with the
implementation
of the State’s housing programmes and said the
following –
“
[68]
Effective implementation requires at least adequate budgetary support
by national government.  This, in turn, requires
recognition of
the obligation to meet immediate needs in the nationwide housing
program.  Recognition of such needs in the
nationwide housing
program requires it to plan, budget and monitor the fulfilment of
immediate needs of the management of crises.
This must ensure
that a significant number of desperate people in need are afforded
relief, though not all of them need receive
it immediately.  Such
planning too will require proper cooperation between the different
spheres of government.”
[403]
When the judgment in
Grootboom
was delivered it was in response
to an application brought to procure shelter for the poorest of the
poor and, in addition, the
SHA was not yet on the statute book.  But,
given that the Constitutional Court was then concerned with the
housing obligations
of the State at a general (or macro) level, there
is no reason not to apply this injunction from the apex court in
relation to
the issue of social housing.  The SHA’s stated
objects and principles are no less demanding than the requirements in

respect of low cost housing and, after all, as Yacoob J pointed out
in
Grootboom
[109]
,
the Constitution itself
allocates powers and functions amongst the different spheres of
government and, in respect of housing, this
is designated as a
function of both the national and provincial spheres.
[404]
To the extent that the National Minister may have been in a position
to address the areas of concern or uncertainty raised
by the Province
on behalf of her Department, she could, and should, have been
consulted by the Province.  After all, the injunction
in the SHA
required both the National Minister and the Province to act in the
interests of parties who were the subject of that
act, as
contemplated under ss5(b) and (c) of IGRFA, an act, as I have said,
which envisages comity rather than shunning the other
side.  And,
such an approach may have afforded an opportunity to resolve the
conundrum I posed earlier – ‘But
why didn’t you
ask?’
[405]
The National Minister was criticised by counsel for the Province for
delaying her intervention until very late in the day
– too
late, in fact, as the Province would have it.  I do not agree.
The National Minister’s
locus standi
to assert a
dispute on behalf of the DHS, as contemplated under IGRFA, only arose
when the Province decided not to resile, thereby
turning its back on
any solution to the social housing shortage in the inner-city under
the SHA.  Prior to that, any intercession
by the National
Minister would have been premature and the Premier would have been
entitled to adopt the stance that there was
no dispute justiciable
under IGRFA, as the Province was still conducting its feasibility
study in order to assess the potential
cost of social housing on the
property.
[406]
But once the Province confirmed its
earlier decision to sell, the National Minister was in a position to
enquire into that decision
on behalf of the DHS, given her statutory
obligations and duties under the SHA and the broader umbrella of the
Housing Act, and
the concomitant obligations and duties of the PDHS
under the SHA which included,
inter
alia
, the duty to promote
‘social, physical and economic integration of housing
development into existing urban and inner-city
areas through the
creation of quality living environments’.
[110]
[407]
In summary, the case for the National Minister in seeking relief
under IGRFA is that the DHS and the Province are organs of
State,
within the national and provincial spheres of government
respectively, and that there was a dispute between these organs
of
State regarding the Province’s failure to inform, or consult
with, the DHS prior to making the decision to dispose of
the property
and, further, a failure by the Province to co-coordinate its actions
with those of the national department or its
agencies (including the
SHRA), or to take into account their material interests in the
property and the potential disposal thereof.
[408]
The National Minister accordingly
contends that there is a dispute ‘arising from a statutory
power or function assigned to
any of the parties’
[111]
and that there is no other statute (or
forum) which regulates the settlement of such a dispute between the
two spheres of government.
The National Minister argues further
(and she is supported in this regard by the City) that the
declaration of a dispute
under IGRFA could have been avoided had the
Province engaged with the National Minister, her department and the
City in relation
to the key decisions pertaining to the disposal of
the property by employing the informal mechanisms provided for in
IGRFA.
[409]
I agree with the National Minister’s contentions in this
regard.  The dual competencies in respect of housing granted
by
the Constitution to both the national and provincial spheres of
government emphasize the necessity for co-operative governance
in
that critical area of social upliftment.  In conclusion on this
issue, I can do no better than to return to
Grootboom
:
‘
[82]
All levels of government must ensure that the housing program is
reasonably and appropriately implemented in the light of all
the
provisions in the Constitution.  All implementation mechanisms
and all State action in relation to housing falls to be
assessed
against the requirements of s26 of the Constitution.  Every step
at every level of government must be consistent
with the
constitutional obligation to take responsible measures to provide
adequate housing.’
[410]
In the circumstances, I am satisfied that there was a dispute as
contemplated under IGFRA between the DHS and the Province,
and that
the existence of such dispute was properly raised by the National
Minister, on behalf of her Department, with the Premier,
acting on
behalf of the Province.
WAS
THE PREMIER ENTITLED TO DECLINE TO ENGAGE WITH THE NATIONAL MINISTER
IN RELATION TO THE DISPUTE RAISED?
[411]
The exchange of correspondence already referred to between the
Premier and the National Minister on this issue suggests, firstly,

ambivalence and ultimately, a change of stance on the part of the
Premier.  Initially, it appears, in the letter originating
from
her office on 5 April 2017, that the Premier was not averse to
Provincial officials engaging with representatives of the DHS
in
relation to the sale of Tafelberg, although she did express
reservations about the formulation of a dispute under IGRFA.
[412]
However, after a further exchange of correspondence, the Premier
(then corresponding through the offices of the State Attorney,
Cape
Town on 2 May 2017) made it clear that she did not believe that a
case had been made out for the determination of a dispute
under
IGRFA.  She did not suggest any further avenues for meaningful
engagement with the DHS, claiming that the Province was
functus
officio
and that in any event the matter was before the court in
terms of the RTC application.
[413]
It seems to me that in responding to
the National Minister, the Premier did not adequately take heed of
what the Constitutional
Court had said in earlier Chapter 3
litigation in which she had been involved.  In
Minister
of Police
[112]
Moseneke DCJ, with reference to the
earlier ruling of the Constitutional Court in
National
Gambling Board
[113]
that
at the heart of Chapter 3 was the duty of organs of State to avoid
litigation, made the following observations regarding the
Premier’s
duties under IGRFA:
‘
[62]
The second contention [by the applicants] was that, although the
premier was acting within the powers given to a province,
and did not
have to declare a dispute, she was still obliged by s41(1)(h)(iii)
and (iv) [of the Constitution] to inform other organs
of state and
consult them on matters of common interest as well as to coordinate
actions.  She had to co-operate adequately
with other branches
of government before appointing the Commission.  There is no
doubt that the premier, acting for the province,
had the obligation
to consult the minister and the commissioner [of Police] before the
province appointed a commission into the
policing function . . .
[63]
. . .
[64]
It must be added that spheres of government and organs of state are
obliged to respect and arrange their activities in a manner
that
advances intergovernmental relations and bolsters co-operative
governance.  If they do not do so, they breach peremptory

requirements of the Constitution.  And yet, more and more
disputes between or amongst spheres of government or organs of state

end up in courts and in this court, in particular.  The
litigation is always at the expense of the public purse from which

all derive their funding . . . Courts must be astute to hold organs
of state to account for the steps they have actually taken
to honour
their co-operative governance obligations well before resorting to
litigation.’  (Internal references omitted.)
[414]
It seems to me that in this matter the Premier, at the very least,
did not comply with her primary duty under ss40(1)(a) and
(b) of
IGRFA, a duty which is sourced in s41(1)(h)(iii) of the Constitution.
In that regard she was required, firstly, to
avoid an
intergovernmental dispute in the exercise of her statutory powers and
the exercise of her statutory functions, and secondly,
to attempt to
settle such a dispute without resorting to litigation.
[415]
The facts to which I have already referred establish that the
Province made no reasonable effort to engage with the City and
seek
clarity from it on the existence and/or extent of the RZs and,
flowing therefrom, the availability of any RCGs for social
housing.
Had the Province complied with its obligations under s41(1) of
the Constitution it would, in all probability, have
established from
the City and/or the DHS that the Tafelberg site fell within an area
that was regarded as being part of an existing
RZ, but which in any
event would imminently be declared to be so.  And, if all three
spheres of government had co-operated
as the Constitution demands of
them, the issue might have been resolved by the National Minister
being requested to amend the RZ
designations, thereby paving the way
for RCG funding which would have lessened the Province’s
financial burden.
[416]
That the Province was alive to this possibility appears clearly from
the Premier’s minute, and yet the Province has
not afforded
this Court a reasonable explanation for its failure to follow this
route, thereby failing to comply with the Constitutional
injunction
in relation to co-operative governance or the relevant provisions of
IGRFA.
[417]
The structure of IGRFA is such that spheres of government who are not
in agreement with each other on matters of mutual interest,
are
encouraged to engage with each other, whether formally or informally,
or through an intermediary, and only proceed to litigation
as a
matter of last resort.  S41(2) of IGRFA is instructive in that
regard:
‘
41(2)
Before declaring a formal intergovernmental dispute the organ of
state in question must, in good faith, make every
reasonable effort
to settle the dispute, including the initiation of direct
negotiations with the other party or negotiations through
an
intermediary.’
Yet
the Premier took no steps in that regard in response to a reasonable
request from the National Minister.  Rather, the Premier

rejected the National Minister’s request, effectively placing
reliance on special defences such as
functus officio
and
sub
judice
rather than engaging with her on the merits.
[418]
In the result I am driven to conclude that the Premier was not
entitled to avoid her constitutional duty to engage with the
National
Minister, and that it is mandatory for this Court to pronounce upon
the Province’s breach of the Constitution in
terms of the first
prayer for constitutional relief sought by the National Minister in
her application.  In no longer seeking
relief under prayers 2
and 3 of the notice of motion (the prayers which have been struck
through in Mr. Jamie SC’s draft),
the National Minister has, in
my view correctly, recognised that it would be futile to order
engagement with the Premier under
IGRFA in circumstances where the
decision to sell is sought to be to be set aside.
[419]
The relief sought by the National Minister in relation to the review
of the decision to sell the property, the invalidity
of the WCLAA
Regulations and related relief, has been addressed in RTC’s
application and need not be addressed further in
regard to the
National Minister’s application.  Although it will amount
to a duplication of the relief granted against
the Province, for the
sake of good order it is necessary to grant an order in each
application, given that the matters were not
consolidated but merely
heard together for the sake of convenience.
[420]
On the basis of the conclusions of reviewability that I have arrived
at in both applications, it is not necessary to consider
granting any
relief other than the setting aside of the sale and declaring the
Regulations to be unconstitutional to the extent
contended.  What
remains to be dealt with is the declaration of the breach of
constitutional obligations and the supervisory
interdict and related
relief sought by RTC against the Province and the City, and by the
National Minister against the Province,
and it is to that which I now
turn.
THE
BASIS FOR THE RELIEF SOUGHT BY RTC REGARDING THE ALLEGED BREACH OF
CONSITUTIONAL OBLIGATIONS
[421]
The relief sought by RTC in prayer 1 of its draft order is for a
declaratory order that the MEC, the Premier, the City and
the MEC: HS
are held to be in breach of their respective obligations under ss25
and 26 of the Constitution, while the second prayer
seeks a mandatory
interdict that these respondents be directed to comply with such
obligations.  The third, fourth and fifth
prayers contemplate
supervisory interdicts against such respondents to ensure judicial
oversight in relation to their compliance
with the
mandamus
sought in prayer 2.  I will refer collectively to these prayers
as ‘the constitutional relief.’
[422]
An application for appropriate relief
in constitutional matters is not controversial.  There is a long
list of cases
[114]
in which both the Constitutional and
High Courts have considered the type of remedy which is appropriate
in cases where there has
been a breach of a party’s
constitutional obligations, and have granted, inter alia, supervisory
interdicts to ensure adequate
compliance with orders of invalidity.
The courts have stressed the need for an effective remedy in
such circumstances, the
point of departure being s172(1) of the
Constitution, which is to the following effect:
‘
172.
Powers of courts in constitutional matters.
(1)
When deciding a constitutional
matter within its power, a court-
(a)
must declare that any law or
conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency; and
(b)
may make any order that is just
and equitable, including-
(i)
an order limiting the
retrospective effect of the declaration of invalidity; and
(ii)
an order suspending the
declaration of invalidity for any period and on any conditions, to
allow the competent authority to correct
the defect.’
[423]
In
Fose
[115]
Ackerman
J set the jurisprudential context for an order under s172:’
‘
[W]ithout
effective remedies for breach, the values underlying and the right
entrenched in the Constitution cannot properly be upheld
or enhanced.
Particularly in a country where so few have the means to
enforce their rights through the courts, it is essential
that on
those occasions when the legal process does establish that an
infringement of an entrenched right has occurred, it be effectively

vindicated.’
[424]
In
TAC
, when confronted with an argument that it lacked the
power to grant a supervisory interdict, the Constitutional Court did
not hesitate
to hold otherwise, mindful of the contention that it
might be said to be in breach of the separation of powers principle:
‘
[99]
The primary duty of Courts is to the Constitution and the law, “which
they must apply impartially and without fear, favour
or prejudice”.
The Constitution requires the State to “respect, protect,
promote, and fulfil the rights in the
Bill of Rights”.  Where
State policy is challenged as inconsistent with the Constitution,
Courts have to consider whether
in formulating and implementing such
policy the State has given effect to its constitutional obligations.
If it should hold
in any given case that the State has failed
to do so, it is obliged by the Constitution to say so.  Insofar
as that constitutes
an intrusion into the domain of the Executive,
that is an intrusion mandated by the Constitution itself . . .
“
[106]
We thus reject the argument that the only power that this Court has
in the present case is to issue a declaratory order.  Where
a
breach of any right has taken place, including a socio-economic
right, a Court is under a duty to ensure that effective relief
is
granted.  The nature of the right infringed and the nature of
the infringement will provide guidance as to the appropriate
relief
in a particular case.  Where necessary this may include both the
issuing of a
mandamus
and
the exercise of supervisory jurisdiction . . .
[113]
South African courts have a wide range of powers at their disposal to
ensure that the Constitution is upheld.  These
include mandatory
and structural interdicts.  How they should exercise those
powers depends on the circumstances of each particular
case.  Here
due regard must be paid to the roles of the Legislature and the
Executive in a democracy.  What must be made
clear, however, is
that when it is appropriate to do so, Courts may – and, if need
be, must - use their wide powers to make
orders that affect policy as
well as legislation.’  (Internal references omitted)
[425]
In his final judgment delivered in the Constitutional Court,
Mwelase
,
Cameron J grappled with the separation of powers principle and the
impact that an order under s172 may have on it.  By way
of
summation the learned Justice ultimately had the following to say in
respect of the powers granted to a court under s172:
‘
[65]
This court has held that the Labour Court, although not expressly so
invested, enjoys jurisdiction to strike down a statute
on the ground
of constitutional invalidity.  By parallel reasoning, it follows
that the Constitution affords the Land Claims
Court extensive powers,
when deciding a constitutional matter within its power, to “make
any order that is just and equitable”.
Any order that is
just and equitable!  That is no invitation to judicial hubris.
It is an injunction to do practical
justice, as best and
humbly, as the circumstances demand.  And it is wrong to
understate the breadth of these remedial powers,
as Madlanga J
eloquently reminds us in
Mhlope
:
[116]
“
The
outer limits of a remedy are bounded only by considerations of
justice and equity.  That indeed is very wide.  It
may come
in different shapes and forms dictated by the many and varied
manifestations in respect of which the remedy may be called
for.  The
odd instance may require a singularly creative remedy.  In that
case, the court should be wary not to self-censor.
Instead, it
should do justice and afford an equitable remedy to those before it
as it is empowered to do.”’
(Internal references
omitted.)
[426]
When considering these
dicta
it is important to bear in mind
the distinction between the powers given to a court under ss172(1)(a)
and (b).  In terms of
the former the court is obliged to
(“must”) grant a declaration of inconsistency with the
Constitution in the event
that the conduct of an organ of state is in
breach of its constitutional obligations.  S172(1)(b), on the
other hand, is cast
in wide and discretionary terms (“may”)
and the relief which may be granted thereunder is, to repeat the
words of Cameron
J in
Mwelase
and Madlanga J in
Mhlope
,
to ‘ensure practical justice’ and to ‘afford an
equitable remedy’ to the litigants before the court.
[427]
In
Rail
Commuters
[117]
O’Regan J explained the
distinction as follows:
‘
[106]
I have concluded that Metrorail and the Computer Corporation bear an
obligation in terms of the SATS Act interpreted
in the light of the
Constitution to ensure that reasonable measures are taken to provide
for the safety and security of rail commuters
on the rail commuter
service they operate.  In this Court, they both denied that they
bore such an obligation.  The first
form of relief that is
sought by the applicants is declaratory.  Section 172(1)(a) of
the Constitution states that this Court
must declare “any law
or conduct that is inconsistent with the Constitution” to be
invalid to the extent of its inconsistency.
It is a special
constitutional provision, different to the common-law rules governing
the grant of declaratory orders.  It
does not mean, however,
that this Court may not make a declaratory order in circumstances
where it has not found conduct to be
in conflict with the
Constitution.  Indeed s38 of the Constitution makes it clear
that the Court may grant a declaration of
rights where it would
constitute appropriate relief:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.”
Unlike
under s172(1)(a), the courts are not obliged to grant a declaration
of rights but may do so where they consider it to constitute

appropriate relief.  The principles developed at common law, and
under the provisions of the Supreme Court Act,
[118]
will provide helpful guidance to consider whether such a declaratory
order should be made, though of course the constitutional
setting may
at times require consideration of different or additional matters.
[107]
It is quite clear that before it makes a declaratory order a court
must consider all the relevant circumstances.  A declaratory

order is a flexible remedy which can assist in clarifying legal and
constitutional obligations in a manner which promotes the protection

and enforcement of our Constitution and its values.  Declaratory
orders, of course, may be accompanied by other forms of relief,
such
as mandatory or prohibitory orders, but they may also stand on their
own.  In considering whether it is desirable to
order mandatory
or prohibitory relief in addition to the declarator, a court will
consider all the relevant circumstances.
[108]
It should also be borne in mind that declaratory relief is of
particular value in a constitutional democracy which enables
courts
to declare the law, on the one hand, but leave to the other arms of
government, the Executive and the Legislature, the decision
as to how
best the law, once stated, should be observed.
[109]
In this case, Metrorail and the Commuter Corporation denied, in
error, that they bore obligations to protect the security
of rail
commuters.  Given the importance of that obligation in the
context of public rail commuter services, it is important
that this
court issue a declaratory order to that effect.  The applicants
also sought an order in which this Court would put
Metrorail and the
Commuter Corporation on terms to take steps to implement that order.
While such an order is no doubt competent,
I am not persuaded
that it is an appropriate order
in
the circumstances of this case.  There is nothing to suggest on
the papers that Metrorail and the Commuter Corporation will
not take
steps to comply with the terms of the order.’  (Internal
references omitted.)
[428]
In Footnote 100 of
Rail
Commuters
O’Regan J
refers to the judgment in
Islamic
Unity
[119]
where Langa DCJ explained the
difference between the common law and constitutional approach to a
declaration of rights:
‘
[9]
In terms of s19(1)(a)(iii) the High Court has the power, in its
discretion, to enquire into and determine any existing, future
or
contingent right or obligation, notwithstanding that the person
seeking the order cannot claim any relief consequential upon
the
determination.  In this case the applicant sought an order
declaring that clause 2(a) is inconsistent with s16(1) of the

Constitution and without force or effect.  The High Court was
not being asked to “enquire into and determine”

applicant’s rights, but to exercise its powers in terms of
s172(1)(a) of the Constitution and to declare clause 2(a) invalid.
[10]
A Court’s power under s172 of the Constitution is a unique
remedy created by the Constitution.  The section is the

constitutional source of the power to declare law or conduct that is
inconsistent with the Constitution invalid.  It provides
that
when a Court decides a constitutional matter, it
must
declare
invalid any law or conduct inconsistent with the Constitution.  It
does not, however, expressly regulate the circumstances
in which a
Court should decide a constitutional matter.  As Didcott J
stated in
JT Publishing (Pty) Ltd and Another v Minister of Safety
and Security and Others
[1996] ZACC 23
;
[1997 (3) SA 514
(CC) para 15]:
“
Section
98(5) [of the Interim Constitution] admittedly enjoins us to declare
that a law is invalid once we have found it to be inconsistent
with
the Constitution.  But the requirement does not mean that we are
compelled to determine the anterior issue of inconsistency
when,
owing to its wholly abstract, academic or hypothetical nature should
it have such in a given case, our going into it can
produce no
concrete or tangible result, indeed none whatsoever beyond the bare
declaration.”
[11]
In determining when a Court should decide a constitutional matter,
the jurisprudence developed under s19(1)(a)(iii) will have
relevance,
as Didcott J pointed out in the
JT Publishing
case.  It
is, however, also clear from that judgment that the constitutional
setting may well introduce considerations different
from those that
are relevant to the exercise of a Judge’s discretion in terms
of s19(1)(a)(iii).’ (Internal references
otherwise omitted.)
[429]
Against that jurisprudential backdrop counsel for RTC advanced their
argument in favour of the constitutional relief as follows.
Firstly,
it was argued that the housing programmes implemented by the Province
and the City since the commencement of the
constitutional era have
not been balanced and flexible, having made no provision for a
significant segment of society to progressively
realise the right to
housing under s26 of the Constitution.  That significant segment
was defined as that group of people
in need of affordable housing (as
opposed to RDP/BNG housing) in central Cape Town.
[430]
Then it was said that there had been a significant break-down in
relations between the Province, on the one hand, and the
City and the
DHS on the other, as regards the provision of affordable housing in
and around central Cape Town (‘CBD and surrounds’).

Lastly, it was contended that both the City and the Province
had failed to discharge their respective obligations to implement

reasonable programmes by providing for access to land to enable the
delivery of social housing by SHI’s.
[431]
Drawing on the authorities referred to above (and others) counsel
submitted that there were some distinct themes that emerged.
In
the first place, it was observed that all of the cases referred to
involved vulnerable groups of people, such as refugees,
the homeless,
children and social grant beneficiaries.  Next, it was noted
that in a number of instances there was serial
non-compliance by the
relevant organs of State with their respective constitutional
obligations, a refusal to act on recommendations,
or a well-held
expectation that the organs of State in question would fail to abide
by or comply with a court order.
[432]
Finally, counsel submitted, in all the situations that had been
referred to there was no easy or immediate solution to address
the
unconstitutional state of affairs – substantial compliance was
likely to take time.  To attain that goal existing
practices
would need to be revisited, reconsidered, replaced where necessary
and then implemented under judicial supervision.  This,
it was
said, was the only practical means to ensure that the constitutional
breach would be rectified as promptly as possible.
[433]
Turning to the facts at hand it was submitted, firstly, that the
individuals most directly affected by the failure of the
state to
make affordable housing available in central Cape Town, were
vulnerable people.  Referring to certain of the applicants
it
was pointed out that, for example:
433.1. Ms. Adonisi worked as a nurse
at a hospital in the CBD and lived in degrading conditions in the
basement of a block of flats;
433.2. Ms. Ntutela, who had lived and
worked in Sea Point for 25 years before being forced out through poor
health to Nyanga (a
township on the periphery), was the mother of a
learner who had to travel a long distance to attend her school of
choice, Sea Point
High;
433.3. Ms. La Hane, a 71-year-old
pensioner and a former resident of Wynyard Mansions, had lived in Sea
Point since 1974 before
being relocated to Sanddrift, some 15km away,
and whose grandchildren (for whom she cared) attended schools in the
inner-city.
Indeed,
the plight of loyal domestic workers, carers and employees in the
service industry and the like, in and around Sea Point,
with respect
to adequate accommodation, is long-standing and pervasive.
[120]
[434]
The next point advanced on behalf of RTC was that both the Province
and the City had, for the better part of 25 years, disregarded
their
obligations to address spatial apartheid and injustice.  In
fact, it was said that these spheres of government were
party to
policies which had exacerbated the problem.  It was said that
the problem was so extensive and entrenched, that there
was no
quick-fix solution and the attainment of full compliance with the
constitutional injunctions was likely to take a long time.
The
Court was thus urged to craft a suitable remedy so as to enable RTC
to hold the authorities to account.
[435]
Mr. Hathorn SC stressed that the
purpose of the supervisory relief was to ensure that the right of
access to adequate housing, by
persons who qualified therefor, was
realised on a progressive basis in central Cape Town.  He said
that RTC did not ask for
a detailed and intrusive mandatory
interdict, nor did it want the Court to prescribe to the Province or
the City how to discharge
their constitutional obligations.  Relying
on s237 of the Constitution
[121]
counsel stressed that the applicants
merely wished to ensure that effective measures were implemented
without undue delay.
THE
SOURCE OF THE CONSTITUTIONAL OBLIGATIONS RELIED ON BY RTC
[436]
At a more general level, RTC bases its application on the approach to
the pursuit and vindication of socio-economic rights
traversed in the
early part of this judgment.  Cases such as
Grootboom
and
Mazibuko
provide the foundation to this argument and I will
not repeat the
dicta
already cited.
[437]
Turning to the applicable legislative and policy instruments, RTC
commences its attack under ss25 and 26 of the Constitution,
and the
rights which devolve therefrom in the
Housing Act, the
SHA and
SPLUMA.  The applicable policy instruments are said to include
the National Urban Development Strategy of 1995, the
DHS’ Urban
Development Framework of 1997, the WCPDP of 2010, the Provincial SDF
of 2014, the City’s Guide for Spatial
Development of 1996 and
the City’s SDF of 2012.
THE
PROVINCE’S OBLIGATIONS
[438]
As I attempted to demonstrate earlier, with reference to the
affidavit of Ms. Gooch, the Province was alive to the problem
of
spatial apartheid and its obligation to promote racial integration
within, inter alia, the wider metropolitan area of the City.
Of
course the Province’s obligations were not limited to the City
– it has responsibility for towns and villages
in the rural
areas of the Western Cape too.  But for present purposes the
Court needs only to focus on the Metro.
[439]
Conceding that it has an obligation to address past imbalances, and
that these are nowhere near to being redressed, the Province
seeks
refuge for its shortcomings in the very words of the Constitution, by
stressing that this ideal can only be realised progressively,
the
implication being that it will hopefully get there in time.  This
approach has to be considered in the context of the
opening remarks
of Mr. Fagan SC in his address to the Court, which were to the effect
that the Province has limited budgetary resources
available to it and
that it has to allocate its funding from National Government
carefully.  I pause to remark
en passant
that these
submissions were made in a pre-COVID 19 world, and I have little
doubt that the reallocation of resources into the health
sector
currently will be said to constitute a major drain on the Province’s
resources.
[440]
But what is of concern about the approach of the Province, is the
apparent disharmony one sees between the frank admissions
of its
departmental functionaries (such as Ms. Gooch from the DTPW and the
erstwhile HOD in the PDHS, Mr. Mguli) as to the necessity
for a
programme addressing affordable housing generally, on the one hand,
and on the other hand, the uncompromising attitude of
its political
functionaries that there is no room for poor people in central Cape
Town (‘no RDP in the CBD’), notwithstanding
the plea from
a Cabinet colleague (Mr. Madikizela) for a move in that direction.
[441]
The official line from the Province bears the hallmark of the
entrenchment of apartheid spatial planning and a seemingly blunt

refusal to engage with the problem.  This is highlighted by the
pursuit of an enormous sum of money at all costs, ostensibly
to
address ‘social imperatives’, but in truth to erect a new
building in the Provincial Precinct of the CBD in partnership
with a
private investor.
THE
CITY’S OBLIGATIONS
[442]
Turning to the City, there are candid admissions in the evidence of
Mr. Mbandazayo that the City recognises that it is confronted
with a
highly fragmented society, which continues to exist along racial
lines, and that the footprint of apartheid still stretches
far and
wide.  Tellingly, Mr. Mbandazayo accepts that the City has
fallen short in this regard.
[443]
In her address to Court, Ms. Bawa stressed that the City found itself
between a rock and a hard place.  It wanted to
promote social
housing as a component of its overall housing service delivery, but
was often having to deal with issues at the
periphery where there was
a constant clamour for land from the poorest of the poor who required
land for informal settlements,
not to mention the regular land-grabs
of vacant ground which have seriously imperilled the orderly
development of informal and
low-cost housing.
[444]
I do not think it would be unfair to the parties to say that social
housing, which after all only became a constitutional
imperative with
the passing of the SHA in September 2009, has not featured high up on
anyone’s to-do list.  On the other
hand, to seek to hold
the parties to account for their non-compliance with SPLUMA is
unfair, given that that statute only came
into operation in 2015,
which is really towards the end of the Tafelberg disposal process.
But SPLUMA is the very legislation
that seeks to advance the
breaking down of the barriers of apartheid spatial planning, and both
the Province and the City are duty
bound to implement it to the best
of their abilities.  While they may not have done so in the
past, they are obliged to do
so, both presently and in the future
[445]
In summary then, it is fair to say that the framework legislation is
in place, at both provincial and municipal level, for
consideration
of a programme aimed at advancing social housing under the SHA, and
that all spheres of government (including national
government which
owns vast tracts of land close to the CBD) need to shoulder
responsibility therefor in advancing the rights of
the poor under
ss25 and 26 of the Constitution.
A
CHANGE OF POLICY ON THE PART OF PROVINCE?
[446]
It would appear that the public interest engendered by the focus on
the sale of the Tafelberg site, might have spurred some
parties on to
re-assess their stance on the provision of affordable housing in and
around central Cape Town.  For example,
while the Province has
set its face against the development of the Tafelberg property for
affordable housing, it has started talking
about the development of
other areas in that regard.
[447]
First, there is the Somerset Hospital
precinct (which incorporates the Helen Bowden Nurses Home Site
[122]
)
which is said to be an area which offers development opportunities
for mixed-use housing, which will be financed by cross-subsidisation.

That much is evident from para 1.3 of the Cabinet decision of
22 March 2017 which is repeated for the sake of convenience:
‘
1.3
The prior decisions of Cabinet on 22 March 2017 in relation to the
proposed use and/or disposal of the Woodstock hospital site
and the
Helen Bowden Nurses Home site (both within the metro) as contained in
the presentation by DOTPW in this regard.  More
specifically the
request by Cabinet that any proposed disposal and/or use of the
Woodstock site (in whole or in part) be referred
to Cabinet so as to
enable it to ensure that affordable housing is best achieved on that
site given its locality and size.  Similarly
with respect to the
Green Point Helen Bowden site, that any RFP that is developed contain
within it the requirement for the maximum
quantum of affordable
housing as will make the development of the site viable.’
[448]
In addition, in para 1.5 (which has been set out above) the Cabinet
made non-specific reference to the promotion of social
housing, while
at the same time expressing financial concerns that allegedly plagued
such developments.
[449]
The EOI document issued under the WCPDP in March 2014 referred to the
intended release of provincial state land for development
purposes in
and around the CBD.  Reference was made therein to the Alfred
Street Complex, Top Yard, Helen Bowden and the Tafelberg
site, all of
which were said to present property development opportunities under
specific criteria, one of which was that the Province
would retain
ownership of the land.  And yet we know that the Province did
not abide by that criterion when it sold the Tafelberg
site.
Tellingly, it has never explained this change of policy.  The
EOI also stated that, at that stage, the Province
owned further
properties in and around the CBD, and that these would be released
incrementally for development.  Unfortunately,
we do not know
the current status of these proposals.
THE
CITY’S APPROACH TO AFFORDABLE HOUSING
[450]
Considering the affidavit of Mr. Molapo it is apparent that the
City’s approach to social housing is more advanced than
that of
the Province.  By way of introduction, Mr. Molapo gives the
following background information:
‘
B.
SOCIAL HOUSING, HOUSING AND THE CITY
11.
The purpose of social housing is to provide good quality rental
housing at rentals affordable to people earning low to medium

incomes.  Through this process, social housing will contribute
to the economic, social and spatial integration of the City.
12.
Over the past 20 years the City has developed and maintained in
conjunction with social housing institutions (“SHIs”)
and
other government entities mixed income and/or fully subsidised social
housing developments.  In fact the City’s
programme
preceded the [SHA].
13.
Currently, the social housing programme is directed at developing
affordable rental accommodation in areas where bulk infrastructure

(sanitation, water, transportation) may be under-utilised, and as
such improving urban efficiency.  It is aimed at households
with
income levels between R1500 and R15000 (depending on the particular
development).
14.
As is apparent from the affordable housing prospectus, annexed to the
third respondent’s answering affidavit marked “LDK15”,

the City seeks to leverage the land which it has available - being
those well-located parcels of development land - and to open
them up
to the social and affordable housing development companies so that
they can develop these areas and provide a range of
affordable
housing opportunities to residents in the City who qualify.
Invariably this will be housing apartments / high
density flats
that are built generally on City-owned or State-owned land, in
partnership with City-accredited SHIs.  It will
also include gap
housing, as well as other housing options to cater for different
income bands so that they may be provided with
housing opportunities.
15.
The City endeavours to create the conditions for the SHIs to carry
out their functions in the social housing sector.  In
addition,
to incentivise development, the City will offer a waiver or reduction
in development charges; discounted land costs;
waving of planning and
building charges; rates exemption or rebates; and, assistance with
the necessary planning approvals process.
The success thus of
this approach is dependent on how SHIs are able to undertake the
contemplated developments.’
[451]
Mr. Molapo then highlights a number of affordable housing projects
which the City has facilitated since 1990, including a
number of
properties which were the subject of land claims.  Some of these
have been referred to earlier.  He also points
out that the City
regards an area such as Maitland as part of the ‘CBD and
surrounds’ and refers to a social housing
project which was
being implemented there at the time that he deposed to his affidavit
in July 2018.
[452]
Mr. Molapo further refers the Court to various tracts of land in and
around the City which are suitable for housing in general,
and
affordable housing in particular.  He illustrates how the
co-operation of national and provincial government is critical
to the
release of these parcels of land for development and the problems
encountered by the City in that regard:
‘
16.7
In the 1990s the military scaled back its operations leaving land
identified as Erf 81 Tamboerskloof, vacant.  The owner
of the
land is the national Department of Defence.  It is an inner-City
site ideally suited for affordable housing, including
social housing.
A pre-feasibility assessment has been undertaken and shared
with the national Department of Public Works
(“DPW”) and
has been endorsed by the Planning and Environment Portfolio
Committee.  Despite being placed on the
agenda for attention of
the Intergovernmental Working Group (“IWG”)
[123]
the matter has not been concluded and this group has now become
defunct.  In 2015 the Human Rights Commission was even asked
to
assist but this has not resulted in the land being made available for
housing.  This is one of the issues in relation to
which the
City would welcome the intervention of the National Minister of Human
Settlement in any intergovernmental process as
the lack of land being
released for affordable housing is the biggest impediment to such
being developed.
16.8
. . .
16.9
The City purchased land from Propnet/Transnet for inclusion with
adjoining City land for the much anticipated “Salt River

Market” mixed use development, including social housing.  This
process commenced in 2012.  Proposals were received
by the
closing date of 27 February 2018.  Communicare is the
recommended SHI and the process is currently being finalised.’
[453]
Later in his affidavit, Mr. Molapo refers to the problem of access to
state-owned land”
‘
89.
One of the perennial difficulties which the City faced in attempting
to obtain land from other organs of state is a lack of
recognition
that it is as equally important to allocate land for housing as it is
for other governmental objectives, irrespective
of the location of
the land and the value of the land.
90.
In the context of social housing, in the long term it would mean that
the housing stock is available to poor households in perpetuity
so
the cost incurred is to be taken into account over generations of
households and not simply the short term.  There are
also issues
of short-term costs versus long-term costs and one of the factors
that is taken into consideration relates to transport
subsidies for
households having to commute for long distances to work
opportunities, as well as the socio-economic and environmental
costs
perpetuating those patents.’
[454]
In relation to unsuccessful endeavours by the City to obtain access
to the large stretches of unproductive land which are
located close
to the CBD and beyond, Mr. Molapo refers to the following sites”
‘
92.1
In respect of the Culemborg site
[124]
which is owned by Transnet an extensive planning exercise has been
undertaken by Transnet to consider the possibility of the
redevelopment
of the entire precinct.  The City has participated
therein advocating that a significant portion thereof be used for
social
housing but to date it does not form part of Transnet’s
plans for the land.
92.2
In relation to Wingfield
[125]
,
which is regarded as a large under-utilised piece of State land.
Depending on which assumptions are accepted, this ranges
from
90 to 152 ha.  It is held by DPW and partially used by the South
African National Defence Force.  It has the ability
of yielding
between 10 000 to 17 000 housing opportunities together with
supporting land uses.  The City has made several
efforts over a
considerable number of years to obtain access to this land for
housing.  There have been a number of formal
requests to the
national government.  Property valuations have been conducted,
site planning exercises and motivations for
its release. (sic)  Its
use after the Olympic Games (as then proposed by the then Olympic Bid
Proposal) would have resulted
in 5000 low income housing units.  In
2009 a formal request to the Housing Development Agency . . . was
made to unlock it
for housing development.  In 2014 a renewed
request was made to the DPW via the Intergovernmental Task Team
(‘IGTT”)
. . .
92.3
Erf 1117 in Table View
[126]
is 104 ha in size and owned by the DPW.  It is in the centre of
a fast-growing urban corridor.  Repeated efforts have
been made
by the City to have access thereto for purposes of creating housing
opportunities.  An informal area known as Happy
Valley is
located thereon which requires services.  A formal request has
been made to the DPW via the IGTT, but to date there
had (sic) been
no formal decision made by the national government in relation to the
release of this land.’
[455]
The evidence on behalf of the City thus establishes that there is a
significant surfeit of under-utilised state-owned land,
both in close
proximity to the CBD and further out.  Mr. Molapo bemoans the
red tape which the City has repeatedly encountered
in attempting to
gain access to such land and also alludes to the cost thereof as one
of the perennial stumbling blocks:
‘
18
The City has no difficulty with the approach of using appropriate
state owned land, where it is made available, or where the
City can
purchase available land for social housing purposes, as well as other
associated spatial integration goals for the municipality
at large.
In fact, the City will welcome any land which is suitable for
such purposes, and it is for that reason that the
Executive
Mayor
[127]
indicated that if
the City were given the Tafelberg site it would develop the site (or
part thereof) for social housing.  But
not at a cost to the City
of R135 million for the land as this would be to the detriment of
other services.’
[456]
Mr. Molapo is critical of the Province’s Regeneration
Programme, and in particular of the fact that the City’s

involvement therein was limited to the furnishing of technical input,
such as planning advice:
‘
44
. . . There was no purpose served for the City to request that any of
the land which formed the subject matter of the Regeneration

Programme be transferred to the City for any municipal purpose, or
even that it be reserved for social housing, given the objectives
of
the Regeneration Programme.’
He
also observes that the City was not consulted by the Province in
relation to its intention to dispose of the Tafelberg site at
market
value, the implication being that the City would have preferred a
different method of valuation so as to enable it to consider

acquiring the property and establishing a social housing project in
Sea Point.
[457]
Mr. Molapo’s 35-page affidavit is thorough and detailed, but
for the avoidance of further prolixity I shall limit further

reference thereto.  Suffice it to say that the City says that,
in respect of the Tafelberg site, it was led to believe at
an early
stage of the disposal process that the Province was seriously
considering an affordable housing option there.  Yet,
in about
2012/13, says Mr. Molapo, it appeared to the City that there was an
inexplicable shift in approach on the part of the
Province in which,
to use the mixed metaphor employed by Mr. Jamie SC, ‘the carrot
was the cash.’
[458]
This deviation by the Province from its stated intent, said Mr.
Molapo, led to the City abandoning any further interest in
Tafelberg:
‘
57.
The City was not consulted prior to the provincial DHS withdrawing
its request for the Tafelberg site.  I was not aware
that this
reservation had been withdrawn until some considerable time
thereafter.
58.
However, once it was clear that a tender would be issued, I alerted
the respective SHIs to prepare themselves for these tenders
if they
were interested, and to identify private sector partners and make
joint ventures, so that they may be in a position to
meet the
provincial DTPW’s anticipated requirements.
59.
There was thus no point in the City pursuing the Tafelberg site for
its objectives because if the provincial DTPW was not prepared
to
make it available at the request of the provincial DHS, it was not
likely to do so at the request of the City.  Besides
which, it
was not one of the sites that the City had budgeted to purchase
especially not at the price it would obviously realise
on the open
market.  This is a difficulty faced in relation to all of land
located near the CBD when sold in the open market.’
[459]
In RTC’s supplementary founding affidavit Ms. Adonisi refers to
various remarks made in 2017 by the erstwhile Executive
Mayor of Cape
Town, Ms. Patricia De Lille, suggesting that the City had had a
change of heart in respect of apartheid spatial planning.
She
attaches to that affidavit, inter alia, statements made on 13
September 2017 by Ms. De Lille and the City’s erstwhile
Mayoral
Committee (“MAYCO”) Member for Transport and Urban
Development, Mr. Brett Herron, both of which proclaimed
a new dawn in
respect of the City’s commitment to affordable housing.
[460]
Ms. De Lille’s statement included the following remarks:
‘
The
City has turned the corner in its approach to affordable housing and
to reversing the legacy of apartheid spatial planning and
forced
removals which saw the majority of Capetonians of colour moved to
settlements away from the inner-city, excluding them from
economic
opportunities.’
[461]
In a further annexure to the supplementary founding affidavit Ms.
Adonisi refers to an interview with Mr. Herron conducted
by an NGO
called ‘GroundUp’ in October 2017.  In the interview
Mr. Herron was asked to comment on the statement
which he had made on
13 September 2017, to the effect that the City had made a ‘180-degree
change in its approach to affordable
housing.’
[462]
Mr. Herron’s response is recorded as follows.
‘
Since
1994, like most other local governments in South Africa, Cape Town
focused on delivering the maximum possible number of housing

opportunities.   This usually meant building RDP
settlements where it was easiest to do so: large, cheap pieces of
land
on the outskirts of the city.  While important, this did
not address the spatial legacy of apartheid, and actually perpetuated

exclusion.  The shift is that we are starting to consider the
location of what we are providing and cater for people overlooked
by
previous housing policies.’
[463]
When asked by GroundUp what had prompted this shift, Mr. Herron
explained:
‘
We’ve
spoken about the legacy of apartheid planning for a long time, and
made commitments to address it, but those commitments
have fallen
short in pursuit of high numbers of low-cost housing.  But where
development takes place, and what development
takes place, needs to
change if we are to have a more equitable, efficient city.  After
the 2016 local elections Mayor De
Lille pledged to tackle Cape Town’s
apartheid spatial legacy, and we’ve taken a number of steps to
do so since then,
notably adopting the Transit-Oriented Development
(TOD) Strategic Framework and forming the Transport and Urban
Development Authority
(TDA), the institution driving this new
process.’
[464]
When GroundUp asked Mr. Herron why it had taken the City so long to
take action in relation to well-located affordable housing,
he
replied as follows:
‘
That’s
hard to answer.  I’m not sure.  The parcels of land
that we’ve just released are City owned,
and always were.  It
wasn’t a difficult process.  I think the focus was just on
providing high numbers on the outskirts,
like I’ve said.’
This
explanation was echoed by Ms. Bawa SC in her address to the Court.
[465]
And to a suggestion that the City had made an about-turn as a
consequence of pressure from, inter alia, RTC, Mr. Herron had
the
following to say:
‘
We
had already begun moving in this direction, but we must give them
credit for introducing public debate around affordable housing
in
Cape Town and raising awareness about the issue.’
[466]
In the City’s answering affidavit Mr. Mbandazayo takes issue
with the issue of the alleged change of direction on the
part of the
City, stating, like Mr. Molapo, that affordable housing had long been
part of the City’s housing agenda.  The
difference,
however, between the City and the Province seems to be that the City
owns limited tracts of land in central Cape Town
and surrounds,
whereas the Province has far greater access to state-owned land which
can be utilised for affordable housing.
EXCURSUS:
THE INVOLVEMENT OF MS DE LILLE
[467]
The papers show that, as mayor, Ms. De
Lille was vocal in her support for affordable housing in the City.
For example, on
6 February 2014 she personally wrote a letter
to the erstwhile Head of State, President Zuma, entitled ‘The
Provision of
Low Cost Housing in Cape Town’
.
In that document Ms.
De Lille drew the President’s attention to the shortage of
suitable available land for housing in the
City and referred to two
stretches of land owned by the South African National Defence Force,
viz.
Wingfield
and Youngsfield.
[128]
Assuring the President that:
‘
The
City of Cape Town is committed to the provision of decent housing and
the creation of vibrant, integrated human settlements.
The
release of over eighty-seven hectares for the express purpose of
housing provision would go a long way to fulfilling
this objective,
in line with defined national human settlement outcomes.  It
needs to be further emphasised that these two
land parcels [are]
close to transport routes, economic opportunities and a range of
other government services such as schools and
medical facilities, . .
.’
and
that:
‘
This
matter is becoming increasingly urgent as the City is currently
engaging with a variety of community, party political and other

organisations, who are growing increasingly impatient with the delay
over the finalisation of the future use of these two land
parcels.
On such occasions we are pains (sic) to emphasise the proactive
steps the City has taken in an attempt to release
this land for
housing, and have stated that the decisions ultimately rests (sic)
with national government.’
Ms.
De Lille urged the national government to facilitate the speedy
release of these parcels of land.  It is obvious that her
plea
fell on deaf ears.
[468]
As the affidavit of Mr. Molapo
demonstrates, Ms. De Lille was a proponent of an affordable housing
option at Tafelberg and in February
2017 pledged the support of the
City in that regard.  At the time that she was the Executive
Mayor of the City, Ms. De Lille
was a member of the Democratic
Alliance.  In October 2018 Ms. De Lille left the Democratic
Alliance, and formed the Good Party
in December 2018.  In May
2019, as a member of that party, she was appointed as the Minister of
Public Works by President
Ramaphosa
[129]
and still holds that post in the
National Cabinet.  For the sake of good order I should point out
that Mr. Herron also left
the Democratic Alliance and joined the Good
Party in December 2018.  He is the Secretary-General of the
party and now serves
as a member of the Western Cape Provincial
Legislature.
[130]
[469]
Ms. De Lille is thus effectively the seventh respondent in the RTC
application.  She did not occupy that post when this
litigation
commenced and the erstwhile Minister of Public Works did not seek to
respond to, or intervene in, this matter.  No
order is sought by
RTC against the Minister of Public Works and no order can thus be
made against that office.  But Ms. De
Lille is presently
ex
officio
in a position to give consideration to (and even promote)
the outcome of the demands she made of President Zuma – not
only
in respect Wingfield and Youngsfield, but also in respect of the
Military Road site in Tamboerskloof and the various other parcels
of
land held by the DPW in and around the CBD (e.g. Top Yard and Alfred
Street), which Mr. Molapo considered might be utilised
for affordable
housing.
[470]
I have specifically made reference to the seventh respondent in the
RTC application because it is clear from, inter alia,
Ms. De Lille’s
letter to President Zuma, and Mr. Molapo’s affidavit, that the
national Department of Public Works has
a key role to play in any
future affordable housing development in the City in securing the
release of under-utilised state-owned
land.  These are of course
matters for consultation on issues of common interest between the
various spheres of government
and no court can prescribe to the
relevant departments how they should engage with each other –
that would violate the separation
of powers doctrine.  But, as
the earlier discussion of Chapter 3 of the Constitution and the
statutory obligations under the
Housing Act and
the SHA demonstrate,
co-operation and consultation on matters of mutual interest under
s41(1)(h) of the Constitution are constitutional
imperatives which a
court can enforce, under IGRFA, in the event that organs of State
fail to comply with their obligations when
called upon by one another
to do so.
IS
AN ORDER UNDER S172 WARRANTED IN THE PRESENT CASE?
[471]
I referred above to
TAC
[131]
where the basis for the consideration
of appropriate relief in constitutional cases was discussed by the
Constitutional Court.  The
ratio
of the judgment is clear:
where a court is satisfied that an organ of state has failed to give
effect to its constitutional obligations,
the Constitution enjoins
the court to say so.  Such a situation might arise where the
court finds, for instance, that the
substance of a particular policy
is unreasonable or that the implementation thereof by such organ is
unreasonable, in which event
the court must make a declaratory order
under s172(1)(a).  But, the court may also consider granting
relief under s172(1)(b),
which might include a supervisory interdict
either together with, or independent of, such a declaratory order.
[472]
In
Grootboom
Yacoob J summarised the position as follows:
‘
[42]
The State is required to take reasonable legislative
and
other
measures.  Legislative measures by themselves are not likely to
constitute constitutional compliance.  Mere legislation
is not
enough.  The State is obliged to act to achieve the intended
result, and the legislative measures will invariably have
to be
supported by appropriate, well-directed policies and programs
implemented by the Executive.  These policies and programs
must
be reasonable both in their conception and their implementation.  The
formulation of a program is only the first stage
in meeting the
State’s obligations.  The program must also be reasonably
implemented.  An otherwise reasonable
program that is not
implemented reasonably will not constitute compliance with the
State’s obligations.’
[473]
What is the constitutional right that
has allegedly been infringed here?  Counsel, for both the
Province and the City, argued
that an individual (or a group for that
matter) did not have a right to demand that the State provide it with
social housing in
central Cape Town or its surrounds.  That
submission is correct as a general proposition, but it seems to me to
miss the point.
As the Constitutional Court noted in
Mazibuko
[132]
(with reference to
Grootboom
) what the court considers when there
is a challenge in respect of a socio-economic right, is the
obligation imposed on the State
to take reasonable legislative and
other measures progressively to realise the right in question,
in
casu
, the right afforded
under s26 to adequate housing.
[474]
In
Grootboom
the position was explained thus with specific
reference to the s26 right:
‘
[35]
The right delineated in s26(1) is a right of “access to
adequate housing” as distinct from the right to adequate

housing encapsulated in the Covenant.
[133]
This difference is significant.  It recognises that
housing entails more than bricks and mortar.  It requires
available land, appropriate services such as the provision of water
and the removal of sewage and the financing of all of these,

including the building of the house itself.  For a person to
have access to adequate housing all of these conditions need
to be
met: there must be land, there must be services, there must be a
dwelling.  Access to land for the purpose of housing
is
therefore included in the right of access to adequate housing in s
26.
A
right of access to adequate housing also suggests that it is not only
the State who is responsible for the provision of houses,
but that
other agents within our society, including individuals themselves,
must be enabled by legislative and other measures to
provide housing.
The
State must create the conditions for access to adequate housing for
people at all economic levels of our society.  State
policy
dealing with housing must therefore take account of different
economic levels in our society.
(Emphasis
added)
[36]
In this regard, there is a difference between the position of those
who can afford to pay for housing, even if it is only basic
though
adequate housing, and those who cannot.  For those who can
afford to pay for adequate housing, the State’s primary

obligation lies in unlocking the system, providing access to housing
stock and a legislative framework to facilitate self-built
houses
through planning laws and access to finance.  Issues of
development and social welfare are raised in respect of those
who
cannot afford to provide themselves with housing.  State policy
needs to address both these groups.  The poor are
particularly
vulnerable and their needs require special attention.  It is in
this context that the relationship between ss26
and 27 and the other
socio-economic rights is most apparent.  If under s27 the State
has in place programs to provide adequate
social assistance to those
who are otherwise unable to support themselves and their dependents,
that would be relevant to the State’s
obligations in respect of
other socio-economic rights.
[37]
The State’s obligation to provide access to adequate housing
depends on context, and may differ from province to province,
from
city to city, from rural to urban areas and from person to person.
Some may need access to land and no more; some may
need access
to land and building materials; some may need access to finance; some
may need access to services such as water, sewage,
electricity and
roads.  What might be appropriate in a rural area where people
live together in communities engaging in subsistence
farming may not
be appropriate in an urban area where people are looking for
employment and a place to live.
[38]
Subsection (2) speaks to the positive obligation imposed upon the
State.  It requires the State to devise a comprehensive
and
workable plan to meet its obligations in terms of the subsection.
However ss(2) also makes it clear that the obligation
imposed
upon the State is not an absolute or unqualified one.  The
extent of the State’s obligation is defined by three
key
elements that are considered separately: (a) the obligation to “take
reasonable legislative and other measures”;
(b) “to
achieve the progressive realisation” of the right; and (c)
“within available resources”.’
(Original
text’s internal references omitted.)
[475]
How is this
ratio
in
Grootboom
applicable to the
instant case?  As Mr. Hathorn SC pointed out, the State has
discharged its legislative duty under s 26(2)
by passing the
Housing
Act (as
the primary statutory instrument) and the SHA (which targets
a large and clearly defined group of working people who earn between

R5000 and R15 000 per month), so as to afford that group the
right to pursue access to affordable housing.
[476]
The next question is whether the executive arm of state (in this case
the Provincial Cabinet) has put in place suitable policies
to enable
the beneficiaries of the rights afforded under the SHA to assert
access to those rights.  As the evidence unequivocally

establishes, the answer to that question must be a firm ‘No’.
At the time this application was launched by RTC,
there was no
policy put in place by the Province to enable working people to
access affordable housing under the SHA, whether in
central Cape Town
‘and surrounds’ or elsewhere in the Metro.  I do not
include the City in this part of the debate
because, while it does
attract obligations under the SHA, it does not have functional
competence in regard to housing: that is
the obligation of the
national and provincial spheres of government.
[477]
Has the Province offered any reasonable explanation for its failure
to implement the provisions of the SHA, which specifically
saddles it
with such an obligation?  The only reason that it seems to
advance (through Ms. Gooch in the answering affidavit)
is that the
right is achieved progressively over time, and that the Province has
not yet arrived at that point in time.  In
argument, Mr. Fagan
SC took the point further by referring to the Province’s
limited resources, and the importance of its
obligations to fund
health and education in the Province.
[478]
The limitation on provincial funding allocated by National Treasury,
however, is no reason not to draw up a policy in respect
of
affordable housing, so as to at least have a blueprint to begin with.
Further, given the Province’s access to land
in central
Cape Town and beyond, and its obligation to promote spatial justice
through the integration of the city’s neighbourhoods
under,
inter alia, SPLUMA, there is every reason to demand of it that it
plan for the future and draw up such plans and policies.
As Mr.
Hathorn SC stressed in his reply, the progressive realisation of the
right to affordable housing is further infringed
when the Province
expressly precludes any access to such a right in the CBD, as Mr.
Carlisle so bluntly put it in his discussion
with Mr. Kramer in April
2014, and which Mr. Grant confirmed a couple of months later.
[479]
Whether the measures taken by both the Province and the City in
relation to the progressive realisation of that right are
reasonable
will, according to
Grootboom
, be determined by context.  That
context includes considerations such as:
479.1. The fact that the CBD is the
economic hub of Cape Town, where a vast number of its working class
residents earning in the
requisite salary band for affordable housing
are employed;
479.2. The lack of an adequate railway
service and inadequate public transport which working people must use
to travel to work in
the CBD;
479.3. The extensive travelling time
required and expense which such people are put to in order to earn
relatively modest salaries
in the CBD;
479.4. The scarcity of affordable land
in the CBD for the purposes of affordable housing development;
479.5. The availability of a sizable
immovable property portfolio which the Province owns, or can access
via national government,
and utilise;
479.6. The historical anomaly that
today central Cape Town is less diversified that it was 50 years ago
under apartheid, when areas
such as District 6, De Waterkant/Loader
Street, Woodstock and Salt River were reserved for occupation by
Coloured and Indian people;
479.7. The fact that Cape Town is
generally recognised as one of the most spatially divided cities in
the world; and
479.8. The admissions by both the
Province and the City that they have not made provision for such
policies.
[480]
Considering the evidence presented by all sides – RTC, the
Province and the City – it is evident to this Court
that the
Province’s policies in relation to the reversal of apartheid
spatial planning, and the promotion of social housing
are, to all
intents and purposes, non-existent.  Indeed, counsel for the
Province was unable to refer the Court to any clear
policy in that
regard.  To be sure, a policy which provides for affordable
housing in and around central Cape Town, taking
into account, inter
alia, the provisions of the
Housing Act, the
SHA and SPLUMA, will
contribute materially to the breaking down of the barriers left
behind by apartheid spatial planning.
[481]
As I have said, while the Province
acknowledges that it is obliged to address apartheid spatial planning
and also to promote affordable
housing, its policies, generally, in
relation to the use of land available to it are haphazard and
reactive, and ultimately lack
rationality.  Similarly, the
absence of a clear policy in relation to the implementation of its
obligations under the SHA
lacks rationality.  A shortage of
money to achieve the long term goals is no excuse for the absence of
a policy
per se.
However,
the implementation of such a policy may be constrained by
resources,
[134]
but that is a different enquiry.
[482]
Turning to the lack of rationality in its policies around the use of
land available to it, the Province does not explain why
it abandoned
the fundamental principle of the Regeneration Programme – the
retention of ownership in its properties –
in favour of a
policy of outright disposal.  And, when it made the decision to
sell the Tafelberg site, the DTPW did so secretively
and without any
documentary recordal thereof.  Then, as the Court has found, it
failed to apply the fundamental principle
under-pinning GIAMA, by
first offering the Tafelberg site to another user in the Province.
Rather, at a very late stage of
the disposal process the DTPW
effectively arm-wrestled the PDHS into submission, purportedly in the
interests of departmental comity.
This is an example of its
reactive response to a feasible proposal in favour of affordable
housing, which is unexplained.
[483]
But most concerning to the Court is the Province’s
volte
face
in March 2017 (after it had been alerted to the possibility
of litigation by RTC’s challenge to the November 2015 sale),
when
it suddenly announced that it was considering social housing
options in central Cape Town.  Against a backdrop of evidence

which establishes unequivocally that the Province’s view for at
least the previous decade had been that affordable housing
belonged
on the urban periphery – the edges of the Metro – rather
than in close proximity to central Cape Town, and
that well-located
state-owned land in that area should be disposed of by private treaty
so as to extract maximum financial return,
it finally came up with a
response to the clamour for social housing closer to the CBD.
[484]
As the affidavit of Ms. Gooch demonstrates, on 22 March 2017, and
shortly before it took the decision not to resile from the
sale to
the Day School, the Cabinet decided to request that any proposed
disposal of the Woodstock Hospital site be referred to
it, so that it
could consider whether affordable housing could be best achieved on
that site given its locality and size.  Cabinet
simultaneously
made a related decision in respect of the Helen Bowden site, by
deciding that any request for a proposal to dispose
of the site
should contain a requirement that the maximum quantity of affordable
housing units be considered.
[485]
But even then, the Cabinet did not expressly say that affordable
housing would be located on the Helen Bowden site.  Rather,
it
was said that it would consider this as an option, and then suggested
that such housing might be included in the overall development
of the
Somerset Precinct, which includes a number of unused buildings and
land in the area between Helen Bowden, the Somerset Hospital
and the
Cape Town Stadium.  Seemingly, the Cabinet jettisoned the idea
of applying for an RCG for such a development, intending
to rely
rather on cross-subsidisation.  This seems to suggest that the
valuable sea-facing land on which Helen Bowden is located
(with its
much sought-after expansive views over Table Bay) would be sold to a
developer to extract maximum value, and that the
proceeds of that
sale might be utilised to develop affordable housing further back.
If this is what it is planning, why does
it not articulate it
in a clearly formulated policy for all to see?
[486]
Then, as Mr. Molapo’s affidavit reveals, in November 2017 the
Cabinet decided that the development of affordable housing
on the
Helen Bowden site would be led by the Province.  This was
followed by the Cabinet resolving, on 6 December 2017, to
dispose of
12 of the erven which made up the Woodstock Hospital site to the City
for social housing purposes, at a price of R5.1m,
which was said to
be substantially below the market value of R9m.  This is a
notable shift away from the Province’s
earlier stance that it
would only dispose of the property at market value, which was around
R30m.
[487]
RTC claims that these decisions reflect a significant change in
policy on the part of the Province in relation to affordable
housing
close to the inner city.  I am in agreement with that
assessment.  In my view, what these more recent decisions
on the
part of the Province demonstrate is that:
487.1. the ‘no RDP in the CDB’
policy advanced by Mr. Carlisle, and
487.2. the subsequent affirmation
thereof by Mr. Grant, when he opined that the financial model for
affordable housing in the inner
city was ‘simply not possible
to apply’, and
487.3. the implementation of the
Regeneration Programme on the basis of its policy to extract the best
possible price for inner-city
properties,
have
been abandoned in favour of a more inclusive approach, which
recognises the importance of reversing spatial apartheid
incrementally
by giving consideration to the development of
affordable housing on land available to the Province.
[488]
The abandonment of its earlier
policies in relation to land use has not been explained by the
Province to the Court.  This
implies a lack of transparency on
its part, which runs counter to the principles applicable to
reasonableness as one sees in, for
instance,
TAC
[135]
and
Mazibuko,
[136]
where the Constitutional Court
required of organs of State that they account fully and openly for
any policy changes brought about.
[489]
The Province’s failure to take the Court into its confidence is
troubling.  Does it recognise that it was in the
wrong before,
and has it made a genuine attempt to redress the injustices of the
past, or has it capitulated to social activism
and political pressure
and attempted to obfuscate in broad and unspecific terms what should
be seen as a clear change of policy?
[490]
Of particular concern to the Court is the dissonance which has been
exposed between the political functionaries in the Province,
and the
departmental functionaries who are required to advise on and
implement their policies.  One sees senior officials
like Messrs
Mguli and Molapo, who are to be presumed to know the inner workings
of their respective housing departments, being
side-lined and/or
ignored when crucial decisions are taken.  Evidently their
knowledge and experience was not regarded as
helpful or worthy of
consideration.  Or perhaps they were regarded as obstructive to
the designs of the political functionaries?
[491]
The considerations which I have referred to are of concern to the
Court in evaluating the Province’s failure to discharge
its
constitutional obligations. Given the relative ease with which
policies were side-stepped or redesigned, the Court would want
to be
assured that, going forward, the Province has clear policies in
respect of the use of state land for the promotion of affordable

housing and that, in the pursuit of transparency, it can be relied
upon to adhere to those policies.
[492]
Importantly, as the facts of this case demonstrate, extensive
consultation would no doubt be required in perfecting such a
policy,
and a court would want to be assured that all three spheres of
government pursue an integrated and consolidated approach
to bring
about the necessary changes and implementation of a constitutionally
compliant social housing policy, with the common
intention of
breaking down the barriers of spatial apartheid.  This would
notionally require consultation and co-operation
between the Province
and national departments such as the DHS, DPW, Treasury and
Agriculture, Land Reform and Rural Development
(to just name a few
that come to mind) on the one hand, and between the Province and the
City, on the other hand.
[493]
In my view the only feasible way to
achieve this constitutional objective is to subject both the Province
and the City to the statutory
interdict sought by RTC, so that the
design and implementation of a comprehensive, inclusive social
housing policy in the context
of the use of both state-owned and
municipal land in and around central Cape Town is constitutionally
compliant under the SHA,
and is capable of assessment and monitoring
by the courts.  In so doing, the Court is conscious not to
trench upon the powers
and duties of the executive arm of government
and it does not intend to tell the Province or the City how to
formulate such a comprehensive
policy.
[137]
All the role-players who will be
required to participate in such an exercise will know their
obligations and can look to this judgment
for guidance in that
regard.
[494]
As far as the City is concerned, I am of the view that the evidence
put up on its behalf, particular by Mr. Molapo, establishes
that it
has done what it could over the years to provide affordable housing
to the community.  It has been hamstrung by the
availability of
suitable land at an affordable price and, notwithstanding its
repeated requests to both national and provincial
government to make
such land available to it (or to facilitate such availability), it
has drawn the short straw every time.  In
that respect one need
look no further than Ms. De Lille’s request to President Zuma
and the City’s expression of interest
in the Tafelberg site for
the provision of affordable housing.
[495]
The City seems to have attempted to do
as best it could in circumstances where, as Mr. Molapo put it, ‘the
levels of co-operation
among the various role-players have largely
dissipated.’  The City is said to have been involved in
the provision of
social housing for some 25 years now
[138]
but, as the interview with Mr. Herron
shows, its service delivery in that regard has been focused on
housing needs at the periphery
or in areas where apartheid spatial
planning is entrenched – for example in traditionally Coloured
neighbourhoods on the
Cape Flats such as Belhar and Elsies River.
[496]
It is true that there are instances where the City has attempted to
break down spatial apartheid barriers fairly close to
central Cape
Town (e.g. Woodstock, Brooklyn and Maitland), but the City’s
inability to provide affordable housing in and
around the CBD has
largely not been of its own making: the evidence of Messrs Mbandazayo
and Molapo, and the interview with Mr.
Herron, suggests that the
non-availability of suitable land at a fair price has been the City’s
Achilles heel.  That
having been said, the Herron interview also
discloses that there were instances where City land could be utilised
for affordable
housing and that it really did not take much to
achieve that situation.
[497]
In the result, I am of the considered view that, while the
constitutional infringement by the City has been less pronounced
than
that of the Province, and that such non-compliance has been explained
– the City has played open cards with the Court
at all material
times – the evidence does establish that in 2017, and after RTC
and others began applying pressure on the
authorities to come up with
a solution for affordable housing closer to central Cape Town, the
City changed course radically.
[498]
Those former members of the MAYCO who more recently recognised the
necessity for an about turn in policy in relation to affordable

housing, have moved on and the Court would want to be assured that
the City remains consistent in the declared intentions of MAYCO
in
that respect.  Certainty in this regard is achieved through a
supervisory interdict and a
mandamus
, which requires both the
City and the Province to co-operate in their planning and subsequent
policy decisions, and for the Province
to include the necessary
consultations with the DHS and other national departments as part of
its policy planning process.
RELIEF
ULTIMATELY SOUGHT IN THE RTC APPLICATION
[499]
In the draft order handed up to Court,
in which the original relief is refined somewhat, RTC asks this
Court, firstly, to grant
an effective remedy under s172 of the
Constitution. In the words of Cameron J in
Mwelase
[139]
the instruction in s172(1)(b) ‘is
an injunction to do practical justice, as best and humbly, as the
circumstances demand’
,
while
Rail
Commuters
[140]
permits the court to issue a
declaratory order, with or without a
mandamus
and a supervisory order.  As I
have said, I shall refer to this as ‘the constitutional
relief’.
[500]
In the second place RTC asks for the review of a number of alleged
administrative decisions.  These commence with the
decision in
2010 by the Province to designate the Tafelberg property as surplus
under GIAMA, followed by the decision of the WCED
in the same year to
surrender the property to the DTPW, and the latter’s decision
in 2015 to dispose of the property in the
open market.  Then
there is the decision in August 2015 by the PDHS to surrender the
property to the DTPW, followed by the
November 2015 Cabinet decision
to sell the property to the Day School.  To the extent that
these decisions are all time barred
under PAJA, an extension of the
180-day period under s7(1) of that act is sought.  Finally, on
the review front, the decision
of the Cabinet not to resile from the
sale of the property, taken on 22 March 2017, is sought to be set
aside.  I will refer
to this as ‘the administrative
relief’.
[501]
Thirdly, RTC seeks a number of mandatory orders, in the form of
interdicts which direct the Province and the Cabinet to take
into
account certain defined facts and considerations when re-assessing
the future use or disposal of the Tafelberg property, including
the
issue of affordable housing.  This will be referred to as ‘the
directory relief’.
[502]
Fourthly, RTC asks for 3 declaratory orders, the first of which is
intended to define the extent of the RZ referred to as
‘CBD and
surrounds’
.
Secondly, it asks that the proviso in
Reg 4(1) and Reg 4(6) of the WCLAA Regulations be declared
unconstitutional and invalid.  Thirdly,
that the disposal in
terms of the Regulations be declared unlawful.  This I shall
call ‘the declaratory relief’.
[503]
Lastly, there is the question of costs.
[504]
By way of general comment it must be said that there is some overlap
in certain of the relief sought which, overall, appears
to be a belts
and braces approach by RTC.  Furthermore, there is some relief
which may be redundant: the Court does not know
whether the National
Minister has issued proclamations in respect of the extent of the RZs
in the interim.  If so, then the
‘CBD and surrounds’
conundrum may have been resolved.  In addition, if the WCLAA
Regulations are set aside in
part, there is other relief that will
fall away.  I shall thus discuss the relief in a more practical
order.
THE
DECLARATORY RELIEF
[505]
Having found that the proviso to Reg 4(1) and Reg 4(6) do not pass
constitutional muster, it follows that they fall to be
set aside and
prayer 15 of the draft should be granted.  The relief sought in
prayer 16 of the draft, for a declaration that
the disposal of the
property in accordance with the WCLAA Regulations was unlawful, is
essentially redundant in light of the declaration
of invalidity of
the Regulations and the review of the November 2015 cabinet decision
to do so, to which I refer hereunder.  However,
ex abundante
cautela
, there can be no prejudice to any of the parties in the
event that an order is made in terms of the said prayer 16.
[506]
On the papers as they stand, I have found that the evidence
establishes on a balance of probabilities that Sea Point falls
within
the RZ described as ‘CBD and surrounds (Salt River, Woodstock
and Observatory)’ in the proclamations of December
2011.  To
the extent that this is still a live issue, a declaratory order
should be made in terms of prayer 14 of the draft,
which must be
qualified slightly to take account of any subsequent developments.
THE
ADMINSTRATIVE RELIEF
[507]
I have found that the November 2015 Cabinet decision to sell the
Tafelberg property to the Day School, and the March 2017
decision not
to resile from that sale, were unlawful and they therefore both fall
to be set aside.  RTC is thus entitled to
relief in terms of
prayers 10 and 11 of the draft order.
[508]
I agree with counsel for the Province
that the earlier provincial decisions sought to be reviewed, as part
of the disposal process,
did not constitute administrative action: in
terms of the
ratio
in
Grey’s Marine
,
they did not have direct legal effect in that they did not have
‘direct and immediate consequences for individuals or groups
of
individuals.’
[141]
Moreover, it was held by Murphy
J (for the Full Bench) in
Free
Market Foundation
[142]
that:
‘“
If
a decision requires several steps to be taken by different
authorities, only the last of which is directed at the citizen, all

previous steps taken within the sphere of public administration lack
direct effect, and only the last decision may be taken to
court for
review . . . Instead of allowing challenges to intermediate or
preliminary decisions, litigants are obliged to wait until
a final
decision has been made.’
[509]
In the result I am of the view that the Court must decline the relief
sought by RTC in prayers 6, 7, 8 and 9 of the draft
order.
THE
DIRECTORY RELIEF
[510]
The relief sought in prayers 12 and 13 of the draft order essentially
requires the Court to tell the Province (at various
levels) how to do
its job.  This is an impermissible intrusion into the sphere of
the executive arm of government.  But
in any event, should the
Province persist in its decision to dispose of the Tafelberg property
it will be required to act afresh
and, in so doing, it will no doubt
be guided by what has been said in this judgment.  In addition,
by taking cognizance of
the terms of the constitutional relief
granted herein, the Province will be guided as to its constitutional
obligations.  In
the result RTC is not entitled to the relief
sought in prayers 12 and 13.
THE
CONSTITUTIONAL RELIEF
[511]
As I have already said, if the court finds that the Province and the
City have breached the Constitution it is duty bound
under s172(1)(a)
to say so.  This is what O’Regan J did in
Rail
Commuters
where she found that Metrorail had failed to discharge
its duty to the rail commuting public by ensuring their safety.  In

that matter the Constitutional Court’s order was a declaration
that ‘the first and second respondents have an obligation
to
ensure that reasonable measures are taken to provide for the security
of rail commuters whilst they are making use of rail transport

services provided and ensured by, respectively, the first and second
respondents.’  Because the Constitutional Court
did not
doubt in that matter that Metrorail would take the necessary steps to
ensure the safety of the commuters, it chose not
to issue any further
orders.
[512]
In
Hoërskool,
Ermelo
[143]
the Constitutional Court considered it
appropriate to issue an order under s172(1)(b) in the absence of a
declaratory order, so
as to guide the parties in their future
relationship. Moseneke DCJ said the following.
‘
It
is clear that s172(1)(b) confers wide remedial powers on a competent
court adjudicating a constitutional matter.  The remedial
power
envisaged in s172(1)(b) is not only available when a court makes an
order of constitutional invalidity of a law or conduct
under
s172(1)(a).  A just and equitable order may be made even in
instances where the outcome of a constitutional dispute
does not
hinge on constitutional invalidity of legislation or conduct.
This ample and flexible remedial jurisdiction in constitutional

disputes permits a court to forge an order that would place substance
above mere form by identifying the actual underlying dispute
between
the parties and by requiring the parties to take steps directed at
resolving the dispute in a manner consistent with constitutional

requirements.  In several cases this court has found it fair to
fashion orders to facilitate a substantive resolution of the

underlying dispute between the parties.  Sometimes orders of
this class have taken the form of structural interdicts or
supervisory
orders.  This approach is valuable and advances
constitutional justice, particularly by ensuring that the parties
themselves
become part of the solution.’  (Internal
references omitted)
[513]
In the result the court issued an order directing the School
Governing Body to determine an appropriate language policy that

complied with s6 of the Constitution (the language clause) and to
report back to the court in that regard.  The Head of the

Education Department was also directed to report to the court on a
number of related, but more technical, issues.
[514]
In
TAC
[144]
the
Constitutional Court issued both a declaratory order and a
mandamus
,
but not a supervisory order:
‘
2.
It is declared that:
(a)
Sections 27(1) and (2) of the
Constitution require the government to devise and implement within
its available resources a comprehensive
and co-coordinated programme
to realise progressively the rights of pregnant women and their
new-born children to have access to
health services to combat
mother-to-child transmission of HIV.
(b)
The programme to be realised
progressively within available resources must include reasonable
measures for counselling and testing
pregnant women for HIV,
counselling HIV-positive pregnant women on the options open to them
to reduce the risk of mother-to-child
transmission of HIV, and making
appropriate treatment available to them for such purposes.
(c)
The policy for reducing the risk
of mother-to-child transmission of HIV as formulated and implemented
by government fell short of
compliance with the requirements in
subparas (a) and (b) in that . . .’
In
addition to this declaratory order, the
mandamus
issued by the
Constitutional Court embraced directions in respect of four defined
medical protocols which the government was ordered
to implement.
[515]
Finally, I should refer to the order issued by the Constitutional
Court in
Grootboom
, given its relevance in so far as the case
also involved the demand for socio-economic rights under s26(2) of
the Constitution.
In that matter the court contented itself
with a declaratory order which read as follows:
‘
2.
“It is declared that:
(a)
Section 26(2) of the
Constitution requires the State to devise and implement within its
available resources a comprehensive and
co-coordinated program
progressively to realise the right of access to adequate housing.
(b)
The program must include
reasonable measures such as, but not necessarily limited to, those
contemplated in the Accelerated Managed
Land Settlement Program, to
provide relief for people who have no access to land, no roof over
their heads, and who are living
in intolerable conditions or crisis
situations.
(c)
As at the date of the launch of
this application, the State housing program in the area of the Cape
Metropolitan Council fell short
of compliance with the requirements
in para (b), in that it failed to make reasonable provision within
its available resources
for people in the Cape Metropolitan area with
no access to land, no roof over their heads, and who were living in
intolerable conditions
or crisis situations.”’
[516]
Considering the orders granted in the aforementioned judgments (and
others) and for the reasons set out earlier in this judgment,
I am of
the view that it is appropriate in the particular circumstances of
this case to grant a declaratory order under s172(1)(a)
of the
Constitution, as well as a
mandamus
and a supervisory order.
In granting the declaratory order I am guided by the relief
sought in prayer 1 of the RTC draft order.
However, I am of the
view that the proposed declaratory order needs to be adjusted
slightly, so as to clearly reflect the
nature of the issues and the
manner in which the Court considers that they ought to be addressed.
This will ensure that the
parties resolve the issues between
them collectively, in a manner which addresses the core of the
underlying dispute and in a manner
consistent with their
constitutional obligations.
[517]
Mindful of the caution expressed by
the Supreme Court of Appeal in
Fischer
[145]
that a court is bound to decide the
case as the parties have decided to present it for adjudication, I am
of the view that the precise
formulation of the constitutional relief
in this matter is, at the end of the day, a matter for the court to
determine.  In
Modderklip
[146]
Langa ACJ cited with approval the
following
dictum
of
Harms JA in the court
a quo
in that case:
[147]
‘
[18]
. . . If a constitutional breach is established, this Court is (as
was the Court below) mandated to grant appropriate relief.
A
claimant in such circumstances should not necessarily be bound to the
formulation of the relief originally sought or the
manner in which it
was presented or argued.’
Moreover,
I am satisfied that there is no prejudice to any of the parties in
the formulation of the preferred relief, as the evidence
before the
Court traverses all of the issues relevant to the declaratory order,
and all the legal points associated therewith were
fully addressed in
argument.
[518]
As part of the declaratory relief sought by RTC, Mr Hathorn SC
annexed to the draft order a map which sought to depict what
RTC’s
experts regarded as ‘Cape Town: CBD and Surrounds’, the
area in question being shaded in yellow on the
original.
[See
PDF for annexure.]
While Mr. Molapo was of the view
that the area might include Maitland, in light of the fact that the
City had initiated a
social housing project there, there is no basis
to reject the opinion of the experts.  While the confirmation of
the area
may in fact turn out to be redundant, in light of the
subsequent declaration of RZs by the National Minister, I am of the
view
that,
ex abundante cautela,
the area in respect whereof
the declaratory order should apply needs to be delineated, given that
the case has been based thereon.
[519]
In relation to the supervisory order I have had regard to the fact
that the COVID-19 pandemic has had a profound effect on
the resources
of all spheres of government, so much so that the provisions of the
National Budget have required interim adjustment
by the Minister of
Finance.  I am mindful too that the declaration of invalidity in
respect of the portions of the WCLAA Regulations
will require the
issuing of revised regulations, which may (or may not) play a part in
the formulation of the Province’s
envisaged policy.  This
too will take time.
[520]
The facts of this case have demonstrated very clearly that the
provision of adequate affordable housing is a function of all
three
spheres of government and that planning and policy cannot take place
in isolation.  As I have said, an effective and
affordable
policy will require consultation across all spheres of government,
with a variety of departments and organs of State
in each sphere.
Having regard to the constraints imposed on all spheres of
government and organs of State by the State of
Disaster proclaimed in
respect of the COVID-19 pandemic, I have erred on the side of caution
and afforded the parties an extended
period of time within which to
comply with their respective obligations under the orders made both
in the RTC and the National
Minister’s applications.
RELIEF
ULTIMATELY SOUGHT IN THE NATIONAL MINISTER’S APPLICATION
[521]
The constitutional relief upon which the National Minister eventually
settled comprises only a declaratory order under s172(1)(a).

Originally, the National Minister also asked for a
mandamus
which effectively obliged the Province to enter into a dispute
resolution process under IGRFA in relation to the intended sale
of
the Tafelberg property.  This was subsequently abandoned, given
that a review of the sale would require the Province to
recommence
the disposal process, if it is so minded.  In such
circumstances, a
mandamus
at this stage would have served no
purpose.
[522]
The declaratory order, on the other hand, is mandatory under the
Constitution and, importantly, would serve to inform the
Province of
its constitutional obligations
vis-à-vis
the National
Minister under Chapter 3 of the Constitution, in the event that the
Province proceeds with the disposal of the property.
As I have
found that there was a breach of Chapter 3 by the Province, it is
necessary that the declaratory order be made.
[523]
The remaining relief sought by the National Minister is for the
review of the sale to the Day School.  Given that the
grounds of
review relied upon by the National Minster in that regard are
substantially similar to those relied upon by RTC, and
given the
Court’s findings in respect of the relief RTC seeks on review,
the National Minister is entitled to a similar order.
The same
applies to the National Minster’s application for a declaration
of invalidity of the WCLAA Regulations.  Although
the National
Minister sought slightly wider relief in respect of the declaration
of invalidity, I have tailored the order to conform
to the order made
in favour of RTC.
COSTS
[524]
In its draft order, RTC asked for an order that those respondents who
opposed the application should bear the costs thereof,
and that such
costs should include the costs of two counsel.  I am satisfied
that the length and complexity of the case warranted
the employment
of two counsel by RTC.
[525]
The principle in
Biowatch
[148]
is that in litigation between the
government and a private party seeking to assert a constitutional
right, if the government loses
it should pay the costs of the other
side.  There is no reason to deviate from that approach in this
matter.  The relief
sought by RTC was opposed by the Province,
the City and the Day School, but in argument, Mr. Hathorn SC
indicated that RTC no longer
sought costs against the Day School.
[526]
I did not understand either the Province or the City to take issue
with the application of the
Biowatch
approach and it was not
suggested that the order should not attach joint and several
liability on the part of those respondents.
Further, I consider
that it would be fair to direct the Day School to bear its own costs.
[527]
Turning to the National Minister’s case, she asks that her
costs and those of her department (the DHS) and the SHRA
be borne by
the Premier, the MEC and the MEC: HS.  While they are not
specifically claimed, it is to be presumed that the
costs are sought
against those respondents jointly and severally.  The costs of
three counsel are sought by the National Minister.
[528]
I am of the view that the costs of three counsel is not warranted.
Mr. Masuku SC’s involvement in the matter seems
to have
been limited to the consequences of the failure to publish in
isiXhosa the May 2015 notice calling for offers on the property.
Had
the National Minister’s team done their homework they would
have established what the Day School’s attorney
managed to
achieve through a rudimentary internet search and saved themselves
time and money.  In the result the argument
in respect of the
notice did not contribute at all to the debate and the National
Minister’s costs should be limited to two
counsel where same
were employed.
[529]
The SHRA joined in as the third applicant in the National Minister’s
application, although it sought no relief in the
case.  Ms
Webber’s contribution in argument was of assistance to the
Court in understanding the statutory framework
which governs social
housing.  In the circumstance I consider it would be fair to
award the SHRA its costs of suit.  Finally,
there is no reason
to apportion the costs of the respondents between the Premier and her
erstwhile Cabinet Members.  The Province,
as the losing party,
must bear the costs in the National Minister’s application and,
to this end, an order need only be granted
against the Premier of the
Western Cape, the first respondent in the National Minister’s
application.
[530]
Ms Bawa SC asked that the City’s costs in the National
Minister’s application be borne by the National Minister.
I
do not agree.  There was no
lis
between the National
Minister and the City and no relief was sought by her against the
City, which was seemingly cited because of
its potential interest in
the application.  In the result, the City responded to the
National Minister’s application
at its peril.  It would,
in my view, be just and fair that the City bear its own costs in that
application.  The same
applies in respect of the Day School,
against whom no relief was sought either.
IN
THE RESULT THE FOLLOWING ORDERS ARE MADE:
CASE
NO. 7908/2017: THOZAMA ANGELA ADONISI AND OTHERS v MINISTER FOR
TRANSPORT AND PUBLIC WORKS: WESTERN CAPE
1.
It is declared that the fourth and sixth respondents have the
following obligations in terms of the Constitution of the Republic,

1996:
(i) under s25(1) the said respondents
are obliged to take reasonable and other measures, within their
available resources, to foster
conditions which enable citizens to
gain access to land on an equitable basis;
(ii) under s26(2) the said respondents
are obliged to take reasonable legislative and other measures, within
their available resources,
to achieve the progressive realisation of
the right of citizens to have access to adequate housing as
contemplated in s26(1) of
the Constitution.
2.
It is declared that the fourth and sixth respondents have failed to
comply with their respective obligations under the legislation

enacted to give effect to the said rights, namely, the
Housing Act,
107 of 1997
and the
Social Housing Act, 16 of 2008
, and have
accordingly breached their respective obligations under the
Constitution.
3.
It is declared that in so failing to comply with their obligations as
aforesaid, the fourth and sixth respondents have failed
to take
adequate steps to redress spatial apartheid in central Cape Town (the
boundaries of which were in 2017 as depicted on the
map annexed
hereto marked “A”)
[See PDF for annexure]
;
4.
The fourth and sixth respondents are directed to comply with their
constitutional and statutory obligations as set out in paras
1 to 3
above.
5.
The fourth and sixth respondents are directed to jointly file a
comprehensive report under oath, by 31 May 2021, stating what
steps
they have taken to comply with their constitutional and statutory
obligations as set out above, what future steps they will
take in
that regard and when such future steps will be taken.  Without
derogating from the generality of the aforegoing, the
fourth and
sixth respondents are specifically directed to:
(i) consult with all departments of
State and organs of State necessary to discharge their duty in so
reporting to the Court; and
(ii) include in their report their
respective policies and the integration thereof in regard to the
provision of social housing
as contemplated in the
Social Housing Act
within
the area of central Cape Town as depicted on annexure “A”
hereto.
6.
The applicants are granted leave to file an affidavit (or affidavits)
responding to the reports filed by the fourth and sixth
respondents
in terms of paragraph 5 above within one month of them having been
served on their attorneys of record.
7.
The November 2015 decision of the Premier of the Western Cape
Province, acting together with other members of the Provincial

Cabinet, to sell Erf 1675, an unregistered portion of Erf 1424 Sea
Point, and remainder of Erf 1424 Sea Point (hereinafter collectively

referred to as “the Tafelberg Property”) to the third
respondent, together with the deed of sale in respect of the

Tafelberg Property entered into between the third and sixth
respondents is hereby reviewed and set aside.
8.
The 22 March 2017 decision of the Premier of the Western Cape
Province, acting together with the other members of the Provincial

Cabinet, not to resile from the contract of sale concluded with the
third respondent is hereby reviewed and set aside.
9.
It is declared that Sea Point falls within the restructuring zone
‘CBD and surrounds (Salt River, Woodstock and Observatory)’

as contemplated in sub-regulation 6.1 of the Provisional
Restructuring Zone Regulations published under General Notice 848 in
Government Gazette 34788 of 2 December 2011.
10.
It is declared that Regulation 4(6), and the proviso in Regulation
4(1), of the Regulations made under section 10 of the Western
Cape
Land Administration Act, 6 of 1998 by Provincial Notice No. 595
published in Provincial Gazette No. 5296 on 16 October 1998

(hereinafter referred to as “the Regulations”) are
unconstitutional and invalid.
11.
It is declared that the disposal of the Tafelberg Property in
accordance with Regulation 4(6), and the proviso in Regulation
4(1),
of the Regulations is unlawful.  This declaration shall operate
prospectively and will not affect any rights which have
accrued to
any party as at the date of this judgment.
12.
The applicants’ costs of suit (which are to include the costs
of two counsel where employed), are to be borne by fourth
and sixth
respondents, jointly and severally
13.
Save as aforesaid, each party is to bear its own costs of suit in
relation to this application.
CASE
NO. 12327/2017: THE MINISTER OF HUMAN SETTLEMENTS AND OTHERS v
PREMIER OF THE WESTERN CAPE PROVINCE AND OTHERS
1.
It is declared that the failure of the Western Cape Provincial
Government (hereinafter “the Province”) to inform
the
National Government (represented by the first and second applicants
herein) of its intention to dispose of Erf 1675, an unregistered

portion of Erf 1424 Sea Point, and the remainder of Erf 1424 Sea
Point (hereinafter collectively referred to as “the Tafelberg

Property”) and to consult and engage with National Government
(represented as aforesaid) in this regard, constitutes a
contravention
of the Province’s obligations in terms of Chapter
3 of the Constitution, and the
Intergovernmental Relations Framework
Act, 13 of 2005
.
2.
The November 2015 decision of the Premier of the Western Cape
Province, acting together with other members of the Provincial

Cabinet, to sell the Tafelberg Property to the fifth respondent,
together with the deed of sale in respect of the Tafelberg Property

entered into between the first and fifth respondents are hereby
reviewed and set aside.
3.
The 22 March 2017 decision of the Premier of the Western Cape
Province, acting together with the other members of the Provincial

Cabinet, not to resile from the contract of sale concluded in respect
of the Tafelberg Property with the fifth respondent is hereby

reviewed and set aside.
4.
It is declared that the deed of sale between the Province and the
fifth respondent in respect of the Tafelberg Property is void,
of no
force and effect and is hereby set aside.
5.
It is declared that
Regulation 4(6)
, and the proviso in
Regulation
4(1)
, of the Regulations made under section 10 of the Western Cape
Land Administration Act, 6 of 1998 by Provincial Notice No. 595
published
in Provincial Gazette No. 5296 on 16 October 1998, are
unconstitutional and invalid.  This declaration shall operate
prospectively
and will not affect any rights which have accrued to
any party as at the date of this judgment.
6.
The first and third applicants’ costs of suit (which are to
include the costs of two counsel where employed) are to be
borne by
the first respondent.
7.
Save as aforesaid, each party is to bear its own costs of suit in
relation to this application.
__________________
GAMBLE, J
I
AGREE:
___________________
SAMELA, J
Appearances
T. A. Adonisi and others v Minister
for Transport and Public Works: Western Cape and others, Case No
7908/17
For
the Applicants
:

P. Hathorn SC
C. de Villiers
Instructed by
Ndifuna Ukwazi Law Centre,
Cape Town.
For the First, Second, Sixth
and Eighth Respondents:
E. Fagan SC
K. Pillay SC
A. du Toit
M. Mokhoetsi
Instructed by the
State Attorney, Cape Town.
For the Third Respondent;
P. Farlam SC
B. Joseph SC
G. Quixley
Instructed by
Edward Nathan Sonnenberg, Cape Town.
For the Fourth Respondent:
N. Bawa SC
T. Mayosi
Instructed by Riley
Incorporated, Cape Town.
For the Ninth Respondent:
E. Webber
Instructed by M.F.
Jassat Dhlamini Attorneys, Johannesburg.
For
the
amicus curiae
:
J. Bleazard
U. Naidoo
Instructed by the
Equal Education Law Centre,
Cape Town.
Minister of Human Settlements and
others v Premier of the Western Cape and others, Case No. 12327/17
For the First and Second
Applicants
I. Jamie SC
T. Masuku SC
L. Stansfield
Instructed by the
State Attorney, Pretoria.
For
the Third Applicant:
E. Webber
Instructed by
Jassat Dhlamini Attorneys,
Johannesburg.
For the First, Second and
Third Respondents:
E. Fagan SC
K. Pillay SC
A. du Toit
M. Mokhetsi
Instructed by the
State Attorney, Cape Town.
For the Fourth Respondent:
N. Bawa SC
T. Mayosi
Instructed by Riley
Incorporated, Cape Town.
For the Fifth Respondent:
P. Farlam SC
B. Joseph SC
G. Quixley
Instructed by
Edward Nathan Sonnenberg,
Cape Town.
[1]
This building is located exclusively
on Erf 1675 while the school is on Erf 1424.
[2]
Situated in the inner city suburb of
Gardens.
[3]
Situated in the inner city area
between De Waterkant and the V & A Waterfront.
[4]
This is a statute passed by the
Western Cape Provincial Legislature.
[5]
National legislation.
[6]
Hereinafter referred to as the “SHA”.
[7]
Ndifuna Ukwazi is an isiXhosa phrase
loosely translated as ‘I want to know’.
[8]
The relevant sections of the
Constitution read as follows: –
‘
25(5)
The state must take reasonable legislative and other measures,
within its available resources, to foster conditions which
enable
citizens to gain access to land on an equitable basis. . .’
‘
26(1)
Everyone has the right to have access to adequate housing.
26(2)
The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive

realisation of this right.’
[9]
The long title of IGFRA reads: ‘To
establish a framework for the national government, provincial
governments and local governments
to promote and facilitate
intergovernmental relations; to provide for mechanisms and
procedures to facilitate the settlement
of intergovernmental
disputes; and to provide for matters connected therewith.’
[10]
Associate Professor in the School of
Architecture, Planning and Geomatics at the University of Cape Town.
[11]
For the necessary purpose of racial
distinction this judgment will refer, where necessary, to the
following groups – ‘African’”,
‘Coloured’
,
‘
Indian’ and
‘White’.
[12]
Professor in the Environmental and
Geographical Sciences Department of the University of Cape Town.
[13]
https://www.groundup.org.za/article/everything-you-need-know-about
-government-housing/
[14]
www.communicare.co.za
[15]
S15(1) – ‘Everyone has
the right to freedom of conscience, religion, thought, belief and
opinion.’
[16]
S30 – ‘Everyone has the
right to use the language and to participate in the cultural life of
their choice, but no
one exercising these rights may do so in a
manner inconsistent with any provision of the Bill of Rights.’
[17]
S31– ‘(1) Persons
belonging to a cultural, religious or linguistic community may not
be denied the right, with other
members of that community –
(a) to enjoy their culture, practice
their religion and use their language; and
(b) to form, join and maintain
cultural, religious and linguistic associations and other organs of
civil society.
(2)
The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.’
[18]
Government of the Republic of
South Africa and others v Grootboom and others
2001
(1) SA 46 (CC).
[19]
Mazibuko and others v City of
Johannesburg and others
2010
(4) SA 1
(CC) para 59.  The case involved the right of access
to water by citizens of Soweto.
[20]
Para 42.
[21]
RTC argues that that those who earn
between R5000 and R15 000 per month, thereby qualifying for
social housing, constitute
such a segment.
[22]
Minister of Health and Others v
Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002
(5) SA 721
(CC) paras 36 & 38.  The case concerned the
provision by the State of anti-retroviral drugs to pregnant women
for the
prevention of mother-to-child transmission of HIV.
[23]
Mazibuko
para
59.
[24]
Mazibuko
para
71.
[25]
Mazibuko
para
96.
[26]
Residents of Joe Slovo Community,
Western Cape v Thubelisha Homes and others (Centre on Housing Rights
and Evictions and another,
Amici Curiae)
2010
(3) SA 454
(CC) para 343;
Joseph
v City of Johannesburg
2010
(4) SA 55
(CC) paras 24 – 25.
[27]
Rahube v Rahube and others
2019 (2) SA 54
(CC) para 50.
[28]
Grootboom
para
35.
[29]
cf.
Governing
Body of the Juma Musjid Primary School and others v Essay N.O. and
others
2011 (8) BCLR 761
(CC) para 37.
[30]
Para 34
et
seq.
[31]
TAC
para
81;
Khumalo and another v
Member of the Executive Council for Education, KwaZulu Natal
2014 (5) SA 579
(CC) para 46.
See also
Women's Legal
Centre Trust v President of the Republic of South Africa and others
2018 (6) SA 598
(WCC) paras 249 &
250.
[32]
See for example
The
International Covenant on Economic, Social and Cultural Rights
(“ICESCR”) which South
Africa ratified in January 2015, and the General Comment of the
United Nations Committee on
Economic, Social and Cultural Rights
(“the
CESCR”), which is intended to be a guide to the interpretation
of ICESCR.
[33]
Strauss, M & Liebenberg, S.:
‘Contested Spaces: Housing Rights and Evictions Law in
Post-Apartheid South Africa’
(2014) 13(4)
Planning
Theory
428 at 434
.
[34]
Provincial SDF p88.
[35]
Provincial SDF p30.
[36]
City SDF p77.
[37]
City SDF p78.
[38]
Makate v Vodacom Ltd
2016 (4) SA 121
(CC) paras 87 –
88.
[39]
Fraser v ABSA Bank Limited
(National Director of Public Prosecutions as Amicus Curiae)
[2006] ZACC 24
;
2007 (3) SA 484
(CC) para 43.
[40]
Makate
para
89.
[41]
South African Police Service v
Public Servants Association
2007
(3) SA 521
(CC) para 20.
[42]
Department of Land Affairs and
others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007
(6) SA 199
(CC) para 53.
[43]
Daniels v Scribante and another
2017 (4) SA 341
(CC) paras 23 - 28.
[44]
Goedgelegen
para
53.
[45]
Minister of Public Works and
others v Kyalami Ridge Environmental Association and another
(Mukhwevho Intervening)
2001
(3) SA 1151
(CC) paras 39 – 40.
[46]
In particular ss25(4) – (9).
[47]
First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Service and another
[2002] ZACC 5
;
2002 (4) SA 768
(CC) paras 49 –
52.
[48]
‘
Limitation of rights
36.
(1) The rights in the Bill of Rights may be limited only terms
of the law of general application to the extent that the limitation

is reasonable and justifiable an open and democratic society based
on human dignity, equality and freedom, taking into account
all
relevant factors, including
(a) the nature of the right;
(b) the importance of the purpose of
the limitation;
(c) the nature and extent of the
limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to achieve
the purpose.’
[49]
Rahube
para
50.
[50]
s5(1)(a).
[51]
Ss10(a)&(b) and 11.
[52]
S13(3)(b) read with s5(1)(f).
[53]
S13(3)(b) read with s5(1)(f).
[54]
In s1 the definition of ‘“dispose’
includes the sale and letting of such land.
[55]
It appears that this was a reference
to the Woodstock Hospital site.
[56]
It appears that the author of the
document conflated environmental considerations with socio-economic
objectives which would ordinarily
include affordable housing.
[57]
As will appear later this was an
attempt to relax the requirements for Black empowerment objectives
while paving the way for White
commercial interests.
[58]
This remark was later referred to
more generally by counsel through the use of the slogan ‘No
RDP in the CBD’.
[59]
Cl 4.2.1.5 reads: ‘The decision
should be articulated by the Project Steering Committee, approved by
the Accounting Officer
after receiving the views and recommendations
of the Provincial and National Treasury. Thereafter, it should be
presented to
the Provincial Cabinet for noting and National Treasury
should be informed of the decision.’
[60]
A public/private partnership.
[61]
This is an area in the immediate
vicinity of the Western Cape High Court, the Provincial Head Office
building in Wale Street and
the adjacent city blocks to the north
and west thereof.
[62]
Broad-based Black Economic
Empowerment.
[63]
In terms of Reg 4(5) of the WCLAA
Regulations.
[64]
‘
PSG 2: Improve education
outcomes and opportunities for youth development;
PSG
4: Enable a resilient, sustainable, quality and inclusive living
environment’.
[65]
‘
This study proposed an urban
design concept intended to provide proposals for the future
development of the Properties.  The
UDR also provided spatial
and design criteria for assessing any future development proposals .
. . The development concept of
the UDR envisaged a mixed use
development . . .’
[66]
This is in fact the substance of the
relief sought by the National Minister in these proceedings.
[67]
NDPP and others v Freedom Under
Law
2014 (4) SA 298
(SCA)
paras 28 – 29.  The case involved a decision by the NDPP
not to prosecute in circumstances where the definition
of
‘administrative action’ expressly excludes (under
s1(ff)) ‘a decision to institute or continue a prosecution
.
’
[68]
Scalabrini Centre, Cape Town and
others v Minister of Home Affairs and others
2018
(4) SA 125
(SCA).  The case involved Government’s
decision to close a refugee reception office in Cape Town.
[69]
Grey’s Marine Hout Bay (Pty)
Ltd and others v Minister of Public Works and others
2005
(6) SA 313 (SCA).
[70]
Bullock NO and others v Provincial
Government, North West Province, and another
2004
(5) SA 262
(SCA).
[71]
Minister of Defence and Military
Veterans v Motau and others
2014
(5) SA 69
(CC) para 33.
[72]
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) paras 46 –
48;
National Treasury and
others v Opposition to Urban Tolling Alliance and others
2012 (6) SA 223
(CC) paras 65 –
66;
Trencon Construction
(Pty) Ltd v Industrial Development Corporation of South Africa Ltd
and another
2015 (5) SA
245
(CC) paras 44 – 45.
[73]
See, for example,
Mazibuko
para 96.
[74]
Para 71.
[75]
Borbet South Africa (Pty) Ltd v
Nelson Mandela Bay Municipality
2014
(5) SA 256
(ECP).  The case involved a challenge by 5 large
corporations doing business in Port Elizabeth against the municipal
budget,
and in particular the levying of electricity charges.
[76]
Doctors for Life International v
Speaker of the National Assembly and others
[2006] ZACC 11
;
2006
(6) SA 416
(CC) para 129.
[77]
‘
Offeror’ is defined in
the regulations as ‘a person who wishes to contract with the
Province
for
the acquisition or disposal of provincial state land’.
[78]
‘
Component’ is defined in
the regulations as ‘the
Component
in the
Western
Cape Provincial Government
responsible
for administering the provincial state land portfolio’
.
[79]
Attorney-General, Eastern Cape v
Blom and others
1988 (4)
SA 645
(A) at 668D-F.
[80]
Nortje en ‘n ander v
Minister van Korrektiewe Dienste en andere
2001
(3) SA 472
(HHA) para 19.  See also
South
African Heritage Resources Agency v Arniston Hotel Property (Pty)
Ltd
2007 (2) SA 461
(C)
paras 23 & 27; Cora Hoexter
Administrative
Law in South Africa
, 2
nd
ed at 384.
[81]
Baxter
Administrative
Law
(1984) at 587.
[82]
Magingxa v National Commissioner,
South African Police Service, and others
2003
(4) SA 101
(TKH) at 111H-I.
[83]
Pharmaceutical Manufacturers
Association of SA and another: In Re Ex Parte President of the
Republic of South Africa and others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) paras 33 and 41.
[84]
Cora Hoexter
op
cit
at 59.
[85]
At 78
et
seq.
[86]
Counsel were agreed that the clause
was neither a suspensive nor a resolutive condition, with Mr Farlam
SC, relying on
Premier,
Free State, and others v Firechem Free State (Pty) Ltd
2000 (4) SA 413
(SCA) para 35,
suggesting it might be regarded as a “potestative condition”.
For present purposes that conundrum
need not be resolved.
[87]
Sandra Liebenberg: ‘Social
Rights and Transformation in South Africa: Three Frames’
(2015) 31
South African
Journal on Human Rights
446
at 466.
[88]
Matatiele Municipality v President
of the Republic of South Africa (No.2)
2007
(1) BCLR 47 (CC).
[89]
Corruption Watch NPC and others v
President of the Republic of South Africa and others; Nxasana v
Corruption Watch NPC and others
2018
(10) BCLR 1179
(CC) paras 32 – 34.
[90]
In s10(a) the U-AMP is described as
‘the principal immovable asset strategic planning instrument
which guides and informs
all
immovable asset management
decisions by the user’ (emphasis added), while s11 obliges a
user (in peremptory terms) to ‘give
effect to its user
immovable asset management plan and conduct immovable asset
management in a manner which is consistent with
this Act and its
user immovable asset management plan.’
[91]
‘
4(2) A custodian –
(a)
. . .
(b)
may –
(i) . . .
(ii) in the case of a provincial
department, subject to the relevant provincial land administration
law, acquire, manage and dispose
of an immovable asset . . .’
‘
13(3)
A custodian may dispose of a surplus immovable asset –
(a)
by the allocation of that immovable asset to another user; or
(b)
subject to the
State Land Disposal Act, 1961
. . . and any
provincial land administration law, by the sale, lease, exchange or
donation of that immovable asset or the surrender
of a lease.’
[92]
‘
5(1) The following are
principles of immovable asset management:
(a)
– (e)
(f)
in relation to a disposal, the custodian must consider whether the
immovable property concerned can be used –
(i) by another user or jointly by
different users;
(ii) in relation to social
development initiatives of government; and
(iii) in relation to government’s
socio-economic objectives, including land reform, black economic
empowerment, alleviation
of poverty, job creation and the
redistribution of wealth
.
’
[93]
The definition has already been set
out above in the section dealing with the understanding of social
housing.
[94]
In
s1
a ‘
restructuring
zone’
is defined to
mean ‘a geographic area which has been –
(a)
identified by the municipality, with the concurrence of the
provincial government, for purposes of social housing;
and
(b)
designated by the Minister in the
Gazette
for approved
projects; . . .”
[95]
Attached to this judgment as Annexure
A is a map of the central Cape Town area produced by RTC’s
experts.
[See PDF for
annexure.]
[96]
Fraser
para
43;
Makate
paras
87 – 88.
[97]
The report is included in Mr Molapo’s
affidavit on behalf of the City as
Annexure
PM 2
and will be referred
to as such in this judgment.  Annexure PM 2 is reproduced
herein replete with its grammatical and syntactical
errors.
[98]
This is a reference to the expert
evidence of Dr Odendaal regarding the geographical extent of what
she considered to be ‘central
Cape Town’.
[99]
See
Airports
Company South Africa v Tswelokgotso Trading Enterprises CC
2019 (1) SA 204
(GJ) para 8 and,
further, the cases referred to in footnote 7 thereof.
[100]
Scalabrini
para
29.
[101]
The promulgation of IGRFA in August
2005 occurred pursuant to this constitutional injunction.
[102]
Premier, Western Cape v President
of the Republic of South Africa
[1999] ZACC 2
;
1999
(3) SA 657
(CC).  The case involved a challenge by the Province
to the constitutional validity of certain amendments to the
erstwhile
Public Service Act of 1994.
[103]
See
Ex
Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa
1996 (4) SA 744
(CC) para 236
et
seq.
[104]
Para 292.
[105]
Premier, Western Cape
para 50.
[106]
Published under IGRFA in GN491 in
Government Gazette 29845 of 26 April 2007.
[107]
The Department of Agriculture, Land
Reform and Rural Development is understood to be the current
incumbent of the portfolio of
‘Land Affairs’ referred to
in that section.
[108]
Para 66.
[109]
Para 39.
[110]
See s2(1)(i)(iv) of the SHA.
[111]
See the definition of
‘intergovernmental dispute’ in s1 of IGRFA.
[112]
Minister of Police and others v
Premier of the Western Cape and others
2014
(1) SA 1
(CC).  The case involved the entitlement of the
Premier to appoint a commission of enquiry to investigate policing
in Khayelitsha,
a decision which was challenged by national
government.
[113]
National Gambling Board v Premier,
KwaZulu Natal and others
2002
(2) SA 715 (CC)
[114]
See, for example,
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC);
TAC
;
Sibiya
and others v Director of Public Prosecutions, Johannesburg, and
others
[2005] ZACC 6
;
2005 (5) SA 315
(CC);
Nyathi v MEC for the
Department of Health, Gauteng and another
2008
(5) SA 94
(CC);
Director of
Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and others
2009
(4) SA 222
(CC);
Allpay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer, South African Social Security Agency and
others
2014 (4) SA 179
(CC);
Mwelase and others v
Director-General, Department of Rural Development and Land Reform
and another
2019 (6) SA
597
(CC);
S v Z and 23
similar cases
2004 (4) SA
BCLR 410 (E);
Strydom
v Minister of Correctional
Services and Others
1999
(3) BCLR 342
(W) and
Kiliko
and Others v Minister of Home Affairs and Others
2007
(4) BCLR 416 (C).
[115]
Para 69.
[116]
Para 83.
[117]
Rail Commuters Action Group and
others v Transnet Ltd t/a Metrorail and others
[2004] ZACC 20
;
2005
(2) SA 359
(CC).  The case involved the safety of rail
commuters using the suburban train services provided by Metrorail.
[118]
Since repealed and replaced by the
Superior Courts Act, 10 of 2013
.
[119]
Islamic Unity Convention v
Independent Broadcasting Authority and others
2002
(4) SA 294 (CC).
[120]
Berman Brothers Property Holdings
(Pty) Ltd v Madikana and others
[2019]
2 All SA 685 (WCC).
[121]
‘
Diligent performance of
obligations
237.
All constitutional obligations must be performed diligently and
without delay.’
[122]
Helen Bowden is a disused nurses’
home adjacent to the Somerset Hospital on the western periphery of
the V&A Waterfront
and appears currently to be unlawfully
occupied.
[123]
The witness points out that the IWG
was established in 2013 by the national Director-General of Public
Works and was specifically
tasked to fast-track the release of
vacant and under-utilised public land for development.
[124]
This is a vast stretch of redundant
railway land which runs adjacent to the area south of the N1 freeway
in the vicinity of the
junction with the N2 on the Foreshore.
[125]
This is a large stretch of
under-utilised land to the south of the N1 freeway in the vicinity
of the interchange with the N7.
It was earmarked, at one
stage, for the location of an Olympic village and stadium when Cape
Town lodged its failed bid to host
the 2004 Olympic Games.
[126]
This is a suburb located on the
eastern shore of Table Bay near Bloubergstrand and adjacent to the
R27 West Coast Road.
[127]
The witness was referring to Ms.
Patricia de Lille.
[128]
This is an old military base located
to the east of the M5 motorway close to the southern suburb of
Ottery.
[129]
Mail & Guardian Online (30 May
2019): “
How Auntie
Patty became Minister De Lille”.
[130]
www.brettherron.co.za
[131]
Para 99.
[132]
Para 46
et
seq.
[133]
This is a reference to the
International Covenant on Economic, Social and Cultural Rights to
which the
amicus curiae
referred the Court in that
matter.
[134]
Grootboom
para
46.
[135]
Para 123.
[136]
Paras 161 – 162.
[137]
TAC
paras
113 – 114.
[138]
It claims to have been involved
therein long before the promulgation of the SHA.
[139]
Para 65.
[140]
Para 107.
[141]
Grey’s Marine
para 24.
[142]
Free Market Foundation v Minister
of Labour and others
2016
(4) SA 496
(GP) para 76.
[143]
Head of Department, Mpumalanga
Department of Education and another v Hoërskool Ermelo and
another
2010 (2) SA 415
(CC) para 97.  The case dealt with the issue of the language of
instruction at a formerly Afrikaans speaking high school.
[144]
Para 135.
[145]
Fischer and another v Ramahlele
and others
2014 (4) SA 614
(SCA) para 14.
[146]
President of the Republic of South
Africa and another v Modderklip Boerdery (Pty) Ltd (Agri-SA and
others, Amici Curiae)
2005
(5) SA 3
(CC) para 18.  The case involved the eviction of
unlawful occupiers of private land.
[147]
2004 (6) SA 40 (SCA).
[148]
Biowatch Trust v Registrar,
Genetic Resources, and others
2009
(6) SA 232
(CC) para 22.