Human Settlements Minister Lindiwe Sisulu is taking the fight to Premier Helen Zille over the Western Cape government’s decision to sell a prime Cape Town site, initially earmarked for social housing, to a private school.
This week, Sisulu said she had decided to approach the courts after her discussions with Zille in a series of letters had broken down. The provincial government will be the respondent.
“I’m just appalled that a government that purports to be working in the interest of everybody — and they throw in the phrase poor people, black people, all of these good phrases … when in fact they are working directly in contradiction to the interests of the poor, and especially people of colour,” Sisulu said.
At stake is the Tafelberg property, in Sea Point, previously owned by the provincial government.
The sale, to the Phyllis Jowell Jewish Day School, was widely condemned and led to protests because the province had earlier declared the site feasible for social housing.
The decision to go to court came after the minister had sought to implement the Intergovernmental Relations Framework Act, which provides a mechanism through which disputes between spheres of government — in this case, national versus provincial — can be resolved.
Initially, Zille agrees in a letter to Sisulu to discuss the Tafelberg sale.
In later correspondence Zille tries to hand Sisulu over to two provincial officials, which the minister declines in order to retain “decorum” between the two spheres of government.
Michael Mpofu, Zille’s spokesperson, said the premier had declined to enter into further discussions with Sisulu because the minister had not provided reasons for the Tafelberg dispute. He also said Sisulu had no legal basis for implementing a process in terms of the Act.
Zille’s office says Sisulu failed to substantiate why she had the legal standing (locus standi) to declare her disagreement on Tafelberg a dispute, as required by the Act. Mpofu said Zille’s office would write to Sisulu to clarify her reasons for intervening.
“We intend to indicate to Minister Sisulu in a letter today that she would need to set out the reasons why she asserts that the Tafelberg decision is unlawful (as opposed to her simple disagreement with it) and why she has an entitlement to take a view on it (locus standi),” Mpofu wrote in an email on Thursday.
But in correspondence with Zille, seen by the M&G, Sisulu clearly and repeatedly cites the Government Immovable Asset Management Act and the Social Housing Act, among other reasons, for her intervention. The letters could be filed in court as part of the department’s application.
In March, the Western Cape government released a statement saying that its Cabinet had unanimously decided to sell the 17 000m2 pocket of land to the school. The property, it said, fell outside zoning requirements and would cost the government too much money to develop into social housing.
The site, part of which was once a whites-only school, was sold to the school for R135‑million, with the proceeds of the sale to be used to upgrade a provincial education building in the nearby inner city.
Sisulu’s office condemned the sale shortly after it was announced. Letters were then sent to Zille, asking to implement a procedure in terms of the intergovernmental Act.
The minister is confident that her court bid will succeed. Her application will be partly based on the Government Immovable Asset Management Act, which regulates the sale of public land.
“That is the primary Act that would have given them power to go on or not to go on. They did not apply through that Act for access to go alone and sell land. It was an illegal act,” Sisulu said. “I can’t imagine that the court would not see that it is illegal, because it is illegal.”
The courts, she said, were a last resort after efforts by nongovernmental organisations — such as housing pressure group Reclaim the City — had failed to halt the sale.
Ndifuna Ukwazi, an activist organisation and legal centre, has launched a court application on behalf of Reclaim the City, accusing the province of failing in its constitutional and statutory obligations by selling Tafelberg. Its case cites the city’s failure to adhere to the law, as Sisulu’s application will, but will be separate.
Zille’s office has said the Ndifuna Ukwazi court application was one reason it decided to refuse further discussions with Sisulu — because the court proceedings may render an intergovernmental relations process “moot”. Mpofu said it will be for the courts to decide whether the sale of Tafelberg should be set aside.
“Minister Sisulu’s opinion as to what she would have done with the property if it was hers is neither here nor there,” Mpofu said.
Although Sisulu is adamant the sale was unlawful, Mpofu says Zille’s office stands by its decision to sell the land. “We maintain these reasons are rational and in line with the Constitution and applicable legislation,” he said.
What has angered Sisulu is that the province sold Tafelberg without consulting the national human settlements department. Mpofu confirmed that the national department had not been notified of the sale.
“No sphere of government may sell government property without consulting the other spheres,” Sisulu said.
The minister says she only became aware of the sale after the province made the news public.
“We heard about it at the point at which we discovered, like everybody else, that the sale had, in principle, gone ahead,” she said. “Of course, we are appalled because Cape Town is a very unique city. It’s a city that historically belonged to everybody, which is why we have District Six as such an important symbol.”
Public spaces for racial integration in the city are “almost gone”, she said, alleging that Tafelberg could only have been sold for “private purposes”.
Sisulu slammed the province for not prioritising poor black people who wish to access working opportunities in the inner city. “A caring government, the first thing they would’ve thought of is: Could we not use it for people who work in the city and who would like to stay near the city? Which is the whole idea of making sure that everybody has equal access to the city,” she said.
But Zille’s office has hit back. If Sisulu truly cared about social housing, said Mpofu, then the national government would have made land it owns in the Western Cape available for the poor.
“If she is of the view that all land in the metro should be used for social housing only, then the vast tracts of underutilised land in our metro, which are owned by our national government — at Culemborg, Ysterplaat, Wingfield, Youngsfield and Denel — are presumably enjoying the same attention by Minister Sisulu,” he said.
Sisulu responded saying: “It may well be so. Let them point out where this land is that belongs to national government and we would be very happy to make sure that we, too, put in our bit to make sure that we can build social housing.
“They have sold illegally. It does not take away how much land we have or how much land we do not have. It was illegal.”