Important precedent in South Africa has been set
The Constitutional Court has determined that the level of meaningful public participation in the decision to sell a former school in Sea Point, a seaside suburb of Cape Town, was insufficient.
In doing so, the apex court set an important precedent that the government and state organs should be held accountable for failing to meet their constitutional obligations.
This ruling represents a significant setback for the Western Cape Provincial government regarding its handling of the 2015 decision to sell Tafelberg School to the Phyllis Jowell Jewish Day School.
The Court has ordered the provincial government to revise its regulations on public participation.
This decision, which was announced on Thursday (2 July), marks a victory for the social justice advocacy group Ndifuna Ukwazi, concluding a 10-year legal battle to declare the sale of the Tafelberg school site unlawful.
Although the sale was cancelled in 2020, the Constitutional Court noted that the case still has implications for spatial equity and public participation in local government matters.
In delivering the judgment, Justice Nonkosi Mhlanthla said that the Tafelberg case demonstrated the adoption of an inadequate public participation process.
She pointed out that the evidence presented to the court did not indicate that the City of Cape Town had developed affordable housing in well-located central areas.
She said that distance from the CBD alone was not a valid criterion for determining housing development locations.
“The matter is about the full participation in the life of the city, including access to front-facing centres such as the CBD and Sea Point,” said Mhlanthla.
The court said Cape Town remained divided along racial lines, with poor, working-class families excluded from amenity-rich areas.
The court noted that the first period of public comment after the decision to sell was held in November 2015 and fell squarely within the Christmas holiday period.
The notice also did not identify the buyer, nor the proposed purchase price of R135 million.
The provincial government has now been given 12 months to amend the regulations under the 1998 Western Cape Land Regulation Act to allow public participation before a sale agreement is reached.
Setting a precedent for South Africa
According to Dakalo Singo, Director and Head of Pro Bono at Werksmans Attorneys, the ruling sets an important precedent.
Specifically, that government and state organs should be held accountable for failing to meet their constitutional obligations.
“It also has important implications for how South African courts will approach the principle of constitutional subsidiarity going forward,” Singo said.
Constitutional subsidiarity is an important principle of South African law.
While the term sounds technical, the principle itself is relatively simple: if Parliament enacts legislation to give effect to a constitutional right, litigants should rely on the provisions of that legislation rather than directly on the Constitution.
“Effectively, that legislation becomes the primary source through which the right must be enforced,” Singo said.
“That means a person cannot simply ignore the legislation and rely directly on the Constitution. Instead, they must either rely on the applicable legislation or challenge the legislation as unconstitutional if they believe that it does not meet constitutional standards.”
While the judgment is important for setting this precedent, it is also important for clarifying that constitutional subsidiarity is not always the end of the enquiry.
“Particularly where courts are asked to assess whether government or state organs have reasonably implemented constitutional rights,” Singo said.
Singo noted that the Constitutional Court’s interpretation does not create an exception to constitutional subsidiarity, nor does it abandon the principle; it merely qualifies it.
“By adopting this approach, the Constitutional Court has contributed to redressing the spatial injustice inherited from apartheid, and to advancing social justice and transformation.”
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