Cape Town Ordered to End Spatial Inequality Forcing Workers Into Hours of Daily Travel

Thousands of Cape Town workers board buses, taxis and trains in pre-dawn darkness each morning, travelling from the city’s periphery to its centre. Their daily commute is not merely a logistical necessity. It reflects the enduring spatial injustice that has defined the city since apartheid. This week, the Constitutional Court acknowledged that reality and ordered the government to change it.

In a landmark ruling, the apex court directed the City of Cape Town and the Western Cape government to submit detailed plans within three months to the High Court, showing how they will reverse spatial inequality through affordable housing in the inner city. The decision concludes nearly a decade of litigation over the sale of the former Tafelberg School in Sea Point, a case that housing activists Ndifuna Ukwazi and Reclaim the City brought to challenge the province’s decision to sell the site to a private school in 2015.

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

Justice Nonkosi Mhlantla, writing the unanimous judgment, rejected arguments that high property prices and land scarcity, both legacies of apartheid, excuse the government from its constitutional duty to provide housing in well-located, amenity-rich areas. “Location is not a peripheral consideration in housing policy. It is integral to the reasonableness inquiry,” Mhlantla wrote. The court found that Cape Town’s division along racial and class lines, with poor and working-class communities excluded from the CBD and similar central areas, represents a pattern of exclusion the government must actively reverse.

The litigation exposed a stark gap between government promises and action. At the time the case was heard, the City had not implemented any projects for social or affordable housing within the CBD, despite claiming it had a pipeline of projects. The court was unsparing. “Paper plans do not amount to constitutional compliance,” Mhlantla said, noting that several proposed projects had been abandoned or stalled for more than a decade. The court found no satisfactory evidence that future projects would materialise.

The case centred on whether the province and city had taken reasonable steps to fulfil their constitutional obligations. While acknowledging potential budgetary constraints, the court ruled that both entities must take steps to overcome these obstacles, including seeking national government funding. The court also found that the province had conducted only a “tick-box exercise” in public participation around the Tafelberg sale, with minimal indication it was receptive to public input.

By contrast, the judgment’s reach extends far beyond the Tafelberg site itself. By establishing that location is integral to housing policy and that governments cannot hide behind market conditions to avoid constitutional duties, the ruling sets a precedent for how affordable housing must be approached throughout South Africa. The Socio-Economic Rights Institute of South Africa supported the case as a friend of the court, and the national Minister of Human Settlements also intervened, arguing that the national department should have been consulted before the province declared the site surplus.

As a result of the litigation, the sale of Tafelberg was cancelled and the Western Cape government has announced that affordable housing will be built on the site. The court’s orders go much further, though. The province and city must now report on their current policies, projects and programmes for affordable housing in the CBD, attach schedules of completed or under-construction projects, detail budgetary resources spent, and document whether national funding has been requested. They must also detail any intergovernmental coordination efforts.

The court additionally declared unconstitutional the regulations under the Western Cape Land Administration that allow public participation only after a valid sales contract is concluded. It suspended that order for 12 months to allow the province to remedy the legislative defect. The court also found that the province’s failure to inform and consult the national Minister of Human Settlements regarding Tafelberg constituted a breach of cooperative governance obligations.

The province was ordered to pay the applicants’ costs, including the costs of two counsel across all court levels. More information about the case and its history is available at groundup.org.za/article/huge-victory-in-legal-fight-for-affordable-housing-in-cape-town/.

For residents who depend on public transport to reach employment, services and opportunity, the ruling reframes what affordable housing policy must accomplish and for whom. The question now is whether the plans the province and city submit to the High Court in three months will reflect genuine commitment or, once again, paper promises.