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Judgment: 31 August 2020

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Judgment: 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 2 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 3 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. 4 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 1 This building is located exclusively on Erf 1675 while the school is on Erf 1424. 5 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 6 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 School2 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, 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. 7 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”)6.
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