A landmark ruling by the Constitutional Court regarding Cape Town's Tafelberg property sets a major precedent for social housing and spatial justice across South Africa.
Image: Supplied
This week, the Constitutional Court ruled that the 2015 sale of the Tafelberg property by the City of Cape Town was unlawful, thereby setting a precedent.
The ruling marks a major shift in public land disposal, according to John Jack, CEO of Galetti Corporate Real Estate. “The price of the asset is no longer the only consideration. The Court has made it clear that well-located public land also carries a constitutional purpose.”
In a unanimous judgment, the court not only set aside the sale but also ordered the City of Cape Town and the Western Cape Government to submit plans within three months outlining how affordable housing will be addressed on the site.
While the government may still sell land, it must now show that affordable housing has been properly considered and that meaningful public participation has taken place before any transaction is concluded.
Although the ruling applies specifically to state-owned land, Jack says the broader property market is watching closely because it sets a precedent that could influence future public land sales across South Africa.
“The case is particularly significant in the Western Cape, home to the country’s most valuable real estate market, where land scarcity, housing demand and property values are constantly under pressure.
"The judgment is likely to shape how governments approach the disposal of well-located public land going forward.”
Looking ahead, Jack cautions that the greater risk is not the judgment itself, but that the government may become reluctant to now dispose of surplus land.
“The danger here is over-correction by the government. If they become over-cautious, then valuable land will remain underutilised,” he says, adding that there must be a clear process for disposal.
“Developers will need to learn how to structure and cross-subsidise portions of land. You cannot require affordable housing on prime public land without ensuring that the zoning supports its financial viability.
"The city will need to consider appropriate development rights and bulk allocations alongside these obligations to ensure such projects are economically feasible.”
When it comes to addressing concerns from neighbouring property owners, Jack notes that mixed-income communities are common in global cities such as London and New York, where social and affordable housing exists alongside some of the world’s most valuable real estate.
“The success of future developments will depend less on the principle of affordable housing and more on effective design, management, maintenance and long-term accountability,” says Jack.
“If these developments are well designed, properly integrated and professionally managed, they should not be viewed as a threat. In fact, they may prove a far better outcome than the unmanaged occupation of valuable central land,” he adds.
On Friday, July 3, the Minister of Human Settlements, Thembi Simelane, welcomed the Constitutional Court judgement about the sale of Tafelberg property, describing it as an important affirmation of the government's constitutional obligations in advancing spatial justice and equitable access to well-located land.
The judgement further confirms the Minister’s position that it is necessary to undertake meaningful engagement with communities and consider their inputs before selling such properties.
Welcoming the ruling, Simelane reiterated that dismantling the spatial inequalities inherited from the apartheid era remains the central priority of the government.
She emphasised that the strategic release and optimal use of well-located public land are essential to accelerating the delivery of affordable housing and creating inclusive, integrated human settlements.
DHS says the government has consistently maintained that state-owned properties are a critical resource in addressing SA’s housing needs and redressing historical patterns of spatial exclusion. The release of strategically located land for human settlements development remains integral to achieving these objectives.
In line with this commitment, during 2025/2026, the Housing Development Agency (HDA), an agency of the National Department of Human Settlements (NDHS), is said to have acquired 2 447.05618 hectares of well-located land to support the development of sustainable and integrated human settlements across the country.
“This judgement serves as an important reminder of our collective responsibility to ensure that public assets are managed in a manner that advances public interest and gives effect to the constitutional right of access to adequate housing.
"As a government, we must continue to prioritise the effective use of well-located land to address the spatial injustices of the past and expand access to affordable housing opportunities”, says Simelane.
She added that the ruling will go a long way in ensuring that people have access to decent and affordable accommodation closer to social and economic activities.
Simelane also acknowledged the contribution of civil society organisations and communities in advancing social justice through constructive engagement and constitutional processes.
“We commend the commitment of Non-Governmental Organisations and ordinary members of the public in advancing social justice. Government remains committed to working collaboratively with all stakeholders to accelerate the delivery of sustainable human settlements and ensure that every South African has access to dignified housing opportunities”, Simelane says.
The court held that the province's focus on housing delivery on the urban periphery, while important, does not discharge its constitutional obligations under sections 25(5) & 26, says Debbie Wall-Smith of Core Property Group.
She says budgetary constraints may affect how the province balances its obligations, but they do not permit it to fulfil one aspect of the housing duty while effectively neglecting another.
“If resources are constrained, the province must take reasonable steps to address that, including seeking national funding where appropriate. The court held that the province had not adopted a coherent, concrete strategy to provide affordable housing in well-located areas.
“The court held that the province's reliance on cheaper peripheral development perpetuates spatial inequality and fell short of the constitutional standard of progressive realisation of access to adequate housing,” Wall-Smith says.