Court Orders Cape Town to Overhaul Affordable Housing Delivery System
Court imposes direct judicial oversight on Cape Town's housing delivery framework and timelines.
Cape Town’s affordable housing delivery framework now sits under direct court supervision, following a Constitutional Court judgment handed down in 2025 that concluded nearly a decade of litigation over a single property transaction.
The case centred on the Tafelberg School site in Sea Point. The Western Cape province declared the property surplus in 2015 and sold it to a private school. Housing activists from Ndifuna Ukwazi and Reclaim the City challenged the transaction, arguing the land should have been used for affordable housing in a location where poor and working-class residents could access employment and services. The Socio-Economic Rights Institute of South Africa participated as a friend of the court, and the national Minister of Human Settlements intervened, contending that the provincial government had bypassed required consultation protocols.
Justice Nonkosi Mhlantla’s unanimous ruling found that the City and province had failed to take reasonable steps to deliver affordable housing in well-located, amenity-rich areas of Cape Town. The court identified a pattern of spatial exclusion rooted in apartheid, where thousands of workers travel daily from the city’s periphery in pre-dawn darkness to reach employment in the centre. “Location is not a peripheral consideration in housing policy. It is integral to the reasonableness inquiry,” Mhlantla wrote.
The court’s core finding was damning on implementation. The City had submitted a pipeline of proposed projects, but none had been completed or were under construction in the CBD at the time the case was heard. “Paper plans do not amount to constitutional compliance,” Mhlantla stated, noting that several projects had been abandoned or stalled for more than a decade. The court rejected arguments that high market values or land scarcity, both legacies of apartheid, excused the government from its constitutional duty.
What changed as a result of the ruling is concrete and time-bound. Both the City and the province must submit detailed reports to the Western Cape High Court within three months, setting out current policies, projects and programmes for affordable housing in the CBD. Those reports must include a schedule of completed projects, projects under construction, budgetary resources spent, and whether national funding has been requested. The court also required disclosure of intergovernmental coordination efforts.
The ruling declared unconstitutional the provincial regulations that permitted public participation only after a land sale contract had been concluded, suspending that order for 12 months to allow the province to remedy the legislative defect. The court also found that the province had conducted only a “tick-box exercise” in public consultation on the Tafelberg sale, with minimal evidence of receptiveness to community input.
The province was ordered to pay the applicants’ costs across all court proceedings, including fees for two counsel in the High Court, Supreme Court of Appeal and Constitutional Court.
The litigation resulted in cancellation of the Tafelberg sale. The Western Cape government has since announced that affordable housing will be built on the site, though the province was still appealing the High Court judgment when that commitment was made.
More broadly, the judgment signals that budgetary constraints do not absolve the City and province of their obligation to take reasonable steps to overcome those barriers, including seeking national government funding. The court emphasised that the failure to deliver affordable housing in accessible locations perpetuated spatial inequality and breached the constitutional right to adequate housing.
Details of the case and its procedural history are available at https://groundup.org.za/article/huge-victory-in-legal-fight-for-affordable-housing-in-cape-town/
The court gave parties leave to file further affidavits and, if necessary, to re-enrol the matter in the High Court. Whether the City and province can move from paper plans to completed buildings, within a framework now watched by the judiciary, is the question that remains open.
Q&A
What specific implementation failure did Justice Mhlantla identify in the City's housing delivery?
The City had submitted a pipeline of proposed projects, but none had been completed or were under construction in the CBD at the time the case was heard. The court noted that several projects had been abandoned or stalled for more than a decade.
What are the time-bound reporting requirements imposed on the City and province?
Both the City and province must submit detailed reports to the Western Cape High Court within three months, setting out current policies, projects and programmes for affordable housing in the CBD, including a schedule of completed projects, projects under construction, budgetary resources spent, and whether national funding has been requested.
What constitutional defect did the court identify in provincial land-sale procedures?
The court declared unconstitutional the provincial regulations that permitted public participation only after a land sale contract had been concluded. The court also found the province had conducted only a tick-box exercise in public consultation on the Tafelberg sale, with minimal evidence of receptiveness to community input.
What happened to the Tafelberg School site as a result of the litigation?
The litigation resulted in cancellation of the Tafelberg sale. The Western Cape government has since announced that affordable housing will be built on the site, though the province was still appealing the High Court judgment when that commitment was made.