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Tuesday Nov 17, 2020

Court demands clarity on sale of Sea Point site

Judges presiding over an application for leave to appeal a landmark ruling of the contested Tafelberg site have demanded clarity on the status of the sale contract.

The Western Cape High Court found that the sale of the property to the Phyllis Jowell Jewish Day School, for R135 million was "unlawful and unreasonable" and set it aside on August 31.

The provincial government and the City applied for leave to appeal the judgment to the Supreme Court of Appeal (SCA) in Bloemfontein while the school did not.

However, judges Patrick Gamble and Monde Sabela wanted the legal representatives for the provincial government to satisfy the court on the status of the sale contract.

In a press statement on September 18, premier Alan Winde and Public Works MEC Bonginkosi Madikizela said following the judgment, the school indicated to the provincial government it did not intend to pursue its rights under the contract of sale.

Winde said they believed the decision would result in the mutual termination of the sale and return of the property to the portfolio of the provincial government for new allocation.

"Its return to our portfolio will give us the opportunity to reconsider its future use in light of the priorities of this new administration. I am grateful to the board of Phyllis Jowell Jewish Day School for informing us of their decision in this regard and which will allow its use to be considered afresh," said Winde, at the time, adding that setting aside of the agreement of sale by the court would become "academic given the stance adopted towards it by the purchaser".

When asked by the judges in court on Friday whether the matter was "moot" or not, the legal representative for the province, advocate Eduard Fagan SC, said it would take months before certain sale suspension conditions were fulfilled. If the sale agreement was moot then there would be no need to send the matter to the SCA.

"Before we entertain the leave for application we would require clarity ... we need to know what the position regarding the sale contract - we need facts - we cannot send 7 000 pages to Bloemfontein," Judge Gamble said.
In terms of the Supreme Court Act, any party applying for leave to appeal must prove to the court that the appeal would have reasonable prospects of success or that there is some other compelling reason why the appeal should be heard.

The Tafelberg judgment had far-reaching implications for the use of well-located public land in central Cape Town to develop affordable housing and address spatial inequality.
Ndifuna Ukwazi and Reclaim The City (RTC), which challenged the sale of the property, described the judgment as "progressive".

It also found that the province and the City had a constitutional duty in terms of section 25(5) right to gain access to land on an equitable basis and the section 26 right of access to housing, to redress spatial apartheid.
"The City and the province have an obligation to urgently unlock public land to restructure our city and promote spatial, racial and economic inclusion, with a focus on central Cape Town," said Ndifuna Ukwazi.

The court also ordered the province and the City to draw up a combined plan on how they would jointly address the legacy of spatial inequality in central Cape Town and present that policy to the Court by no later than May 31, 2021.

The judgment, said Ndifuna Ukwazi, also had implications for public land use across the city and also broadened the opportunity for the public to have a say in critical decisions about land.

The leave for appeal application was based on several reasons including the argument by the City and province that they did not have an obligation to provide social and/or affordable housing in a specific area.

But Ndifuna Ukwazi and RTC would argue that Province and the City had to take reasonable measures to give effect to the right to gain access to land on an equitable basis and the right to housing - and not providing social and/or affordable housing in central Cape Town would be unreasonable, and therefore unconstitutional.

Central Cape Town, they argued, was the most significant concentration of business and employment in the city and the region, with more than 200 000 people commuting into the city every work day.
The leave to appeal application was postponed to the first quarter of 2021.

Weekend Argus (Sunday Edition) 15 Nov 2020 BULELWA PAYI


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