Authored By: Queen Thoriso Miraclina Emeana
University of South Africa
- Case Citation and Basic Information
Full name of the case: Adonisi and Others v Minister for Transport and Public Works, Western Cape and Others; Minister of Human Settlements and Another v Minister for Transport and Public Works, Western Cape and Others.
– Citation: [2026] ZACC 29.
– Court: Constitutional Court of South Africa.
– Date of Decision: 2 July 2026.
The bench of nine judges gave a unanimous judgment, penned by Justice Nonkosi Mhlantla.
- Introduction
This landmark judgement raises the fundamental constitutional question of what the state should do in order to respond to the lasting effects of apartheid-spatial planning. The Western Cape Provincial Government sought to sell the Tafelberg property in the well-located town of Sea Point, Cape Town, for R135 million to a private school, instead of affordable housing. The Constitutional Court’s decision is an important affirmation of the state’s responsibility to address spatial inequality by means of public land, and demonstrates that location of housing is an integral part of the right to adequate housing in the South African Constitution.
- Facts of the Case
The Western Cape Provincial Government owned the property known as Tafelberg (355 Main Road, Sea Point) and this was the site of a remedial school. The school closed and the residences were left empty, leaving the site vacant.
The Provincial Cabinet chose to sell the land to the Phyllis Jowell Jewish Day School in 2015 for R135-million.
This was opposed by a number of individual applicants, community organisations such as Reclaim the City and the National Minister of Human Settlements, in turn, opposed by the Ndifuna Ukwazi Trust.
In 2020 the Western Cape High Court sided with the applicants and set aside the sale and directed the Province and City to create a plan to provide affordable housing.
This was overturned by the Supreme Court of Appeal in 2024 where it was determined that there was no legal requirement to provide social housing at a specific place.
The applicants then appealed to the Constitutional Court, which issued the judgment in 2026.
- Legal Issues
The Constitutional Court answered the following key questions:
- Issue 1: Whether the Province’s actions in selling the Tafelberg property and the City’s and Province’s lack of providing access to affordable housing in well-located areas, was a breach of their constitutional duty to redress spatial apartheid and to provide access to adequate housing, as per Sections 25(5), 26(1), and 26(2) of the Constitution.
- Issue 2: Did public participation in the process that culminated in the sale comply with the constitutional requirement of meaningful public participation, or was it just a “tick box” process?
- Issue 3: Did the Province fail to fulfill its obligation towards cooperative governance by not consulting with the National Minister of Human Settlements before disposing of the land?
- Issue 4: Whether the applicants could directly invoke the Constitution to challenge the government’s action in view of the principle of constitutional subsidiarity.
- Arguments Presented
5.1 Appellants’ Arguments
– The applicants stated that the Province and the City had failed to fulfil their constitutional obligations to redress apartheid spatial planning and make adequate housing available.
They argued that they would not allow the sale of state-owned land such as Tafelberg for private purposes while constructing affordable housing on the outskirts of the city, thus recycling the historical injustice of spatial apartheid.
They said the public participation process was “hollow” because it was done after the decision for sale was taken.
5.2 Respondents’ Arguments
The Province and the City had stated that it was not feasible or suitable to develop social housing on the Tafelberg site.
– The Province responded that it had sold the property in a lawful way, and that the property had been properly declared surplus to government needs to finance other developments.
Another point raised by the respondents was the principle of constitutional subsidiarity, which views the applicants’ request as one that should have been made under the prevailing housing laws, instead of directly seeking relief from the Constitution.
The judiciary’s rationale and analysis.
The Constitutional Court in a unanimous verdict has categorically dismissed the arguments given by the respondents. The court’s reasoning was based on the following points:
As an element of adequate housing, the Court was quite emphatic that the government’s housing obligations are not satisfied by simply constructing a house somewhere. It believed “location” to be one of the core elements and central pillars of the right to an adequate housing. Insufficient development of low income housing in the outskirts of the cities leads to “poverty traps” where people are separated from employment, school and other opportunities to improve their economic circumstances, which is not reasonable.
Clarification of Constitutional Subsidiarity: The Court explained the principle of constitutional subsidiarity. It concluded that when the recognition of rights under Sections 26 and 27 of the Constitution requires the state to take “reasonable legislative and other measures,” courts have the freedom to assess the reasonableness of government action and policies directly against the Constitution, even in the absence of legislation. This considered method was an effective way to prevent the State from escaping constitutional responsibility.
Unlawful Sale and Participation: The Court concluded that the sale was unlawful because the Province had unknowingly declared the “surplus” to its needs land that was well located, without adequately considering the land’s potential for social housing. In addition, the Court found the public participation process unconstitutional and invalid as it meant that sale of the property could be finalised without any meaningful public consultation.
- Judgment and Ratio Decidendi
The Constitutional Court agreed with the appeal and set aside the order of the Supreme Court of Appeal and restored the order of the High Court. The sale of the Tafelberg property to the private school was found to be illegal and invalid and is reversed.
The main legal principle to be developed is that the state has a positive duty to take into account the spatial dimension of housing, including the location of housing, and to consider and act in line with that location to actively address the past spatial injustices. Housing policy which offers housing at the outskirts alone is itself unreasonable and unconstitutional.
Orders and Directions: The Court directed the Western Cape Provincial Government and the City of Cape Town to provide a detailed report to the Western Cape High Court in three months’ time (by October 2026). This report must outline their plans, budgets and timelines to ensure affordable housing is provided in the Cape Town CBD, Seapoint and other well located areas.
- Critical Analysis
Importance of the Decision: This decision is a milestone in South African housing and spatial justice jurisprudence. It offers a strong legal weapon against government decision-making on the disposition or underutilization of public lands in well-located areas. It goes beyond a right to a house to a right to “adequate housing” in a place where there is opportunity.
Implications and Impact: This is a definite call to all spheres of government to consider public land as a strategic resource to transform. It definitely boosts the appeal of civil society groups such as Ndifuna Ukwazi and Reclaim the City, and could have an impact on future challenges to the disposal of other public property, like the Good Hope Centre. As a policy issue, it has revealed a big failure of the Western Cape government and the City of Cape Town, affecting the DA-led administration, and opposition parties have been quick to lambast government for its housing performance in light of the judgment.Politically, it has brought a juicy policy failure to the fore for the DA-led administration, and opposition parties have been quick to point out the failures on housing in the City of Cape Town and Western Cape government’s record in the matter.
Strength of the judgment: Unanimous, clear and principled condemnation of historical injustice. But, the most difficult part is still implementation. It was a wise suggestion by the Court for a report on the measures in place, as government projects could have advanced over the past eight years of legal proceedings. The real question is whether the necessary report will result in a substantial number of well-situated, affordable units for low-income residents – or whether government solutions remain on paper.
- Conclusion
Tafelberg is an important case and a success for spatial and housing justice in South Africa. The Constitutional Court has unequivocally established that the struggle to overcome the legacy of apartheid spatial planning is a primary constitutional mandate, not a side policy. The Court has set a major precedent that will impact housing policy and legal strategy for years to come, and help millions of people move closer towards the constitutional right to dignity and equality by compelling the government to report on its plans for well-located affordable housing.
