Tafelberg judgement invalidates sale to Jewish school

The Cape Town Jewish community lost out on a property in a case in which they were a casualty in a much bigger war. This week the sale of the Tafelberg property that the Phyllis Jowell Jewish Day School (PJJDS) bought from the City of Cape Town for R135 million in 2015 was set aside.

This historic court case put the school in the middle of a battle between the City of Cape Town, the Western Cape government, the national department of human settlements, and housing activists.

“This is a landmark judgement, with repercussions that go far beyond this particular case. From now on, when national, provincial, or municipal government are dealing with major land transactions, they will have to consider addressing historic spatial apartheid,” former Constitutional Court Judge Albie Sachs told the SA Jewish Report.

Paul Wisenberg, a partner in Maurice Phillips Wisenberg Attorneys, Notaries and Conveyancers, who has extensive experience in property-related disputes, explains: “The setting aside of the sale must be seen as a casualty in the overall theme of the judgement, namely the failure of government bodies to provide ‘affordable housing’ closer to the economic hub of the city.”

Reclaim the City and Ndifuna Ukwazi took the Province and the City of Cape Town to court for selling the property to PJJDS instead of using it for social housing. The human settlements department launched a separate case against the province for not consulting the national minister prior to making the decision to sell. The cases were heard together, and the final judgement was released on Monday 31 August in a more than 200-page document.

PJJDS is a small pre-primary and primary school catering to children aged 18 months to Grade 6, and blends secular and religious education. The school is situated in a relatively small space at the back of the Camps Bay shul, and needed to relocate to a larger and more central area.

When court proceedings ended in December 2019, PJJDS director Lance Katz told the SA Jewish Report that, when the school tendered for the site, they had no inkling of the dispute that would erupt. “PJJDS tendered in good faith, and was selected as the preferred bidder based on the rules and criteria of the tender. Objections to the province’s disposal of the site emerged only after PJJDS had already been selected.”

He added that, “It’s unfortunate that we have been drawn into a matter not of our choosing, and that at times, particularly early on, the dispute was wrongly positioned as a ‘Jewish community versus social housing’ debate.

“However, as time has passed … the focus has shifted away from the Jewish community to the real issue of the case, which is where and how national government, the province, and the city implement a coherent, efficient, and sustainable housing strategy.”

Adds Wisenberg, “According to the judgement, which Judge Patrick Gamble refers to as ‘a marathon matter of great significance’, it appears that the various governmental bodies, in particular the Western Cape Province and the City of Cape Town, did not follow proper legal process in the sale to the school, and therefore the sale has been set aside.

“The province can decide to proceed with the sale but will need to follow the correct processes, as written in the judgement: ‘Should the Province persist in its decision to dispose of the Tafelberg property, it will be required to act afresh and, in so doing, it will no doubt be guided by what has been said in this judgement.’”

Says Sachs, “The principle of overcoming spatial apartheid is particularly powerful when the authorities deal with public land. But if my understanding of the judgement is correct, the need to overcome spatial apartheid would have to be a serious factor to be considered in relation to planning permission for development of privately owned land as well.

“It is a very thoughtful, carefully reasoned, and rigorous judgement, and my wish would be for the Jewish community to respond in a proactive way,” he says.

“I knew Phyllis Jowell, and everything I remember about her was positive. She was warm, generous, caring, and progressive. I think it would honour her if the community organisation could respond in a warm, generous, caring, and progressive way to the decision. It would be wonderful if it could think positively about the contribution it could make,” he adds.

“Without abandoning the idea of the school, it could look at the matter with fresh eyes, with a view to contributing towards healing the city. And the first step could be to speak to Reclaim the City and Ndifuna Ukwazi, who brought the case, with a view to developing a joint approach.

“This is an opportunity for the community to apply its brains and hearts to helping create a positive landmark for the city, if it wishes to continue with this venture,” emphasises Sachs. “It can be a landmark of social development that is healing, is good for the city, undermines apartheid divisions, and finds an appropriate niche for the specific interests that the community has for the education of Jewish children.”

Mandisa Shandu, executive director of Ndifuna Ukwazi, says, “Even though this case has been four years in the making, it’s really about over 400 years of land dispossession and exclusion in Cape Town. The High Court’s decision requires the Province and the City to urgently come to grips with and implement their legal duties to redress spatial inequality.”

The court ordered the Province and the City to draw up a combined plan on how branches of government will jointly address the legacy of spatial inequality in central Cape Town and present that policy to the court by 31 May 2021.

Western Cape Premier Alan Winde said in response to the judgement that “the Western Cape government is deeply committed to addressing the needs for affordable housing and redressing the spatial legacy of apartheid,” but in some instances had been prevented from doing so, ironically because housing activists are occupying these sites and refuse to leave.

Human Settlements, Water and Sanitation Minister Lindiwe Sisulu welcomed the ruling, saying she “sincerely hopes that all affected parties will respect and abide by the High Court ruling and put first the needs of the people we are here to serve”.

Says Wisenberg, “Because of the ‘great significance’ of the judgement, it is extremely likely that after consideration of the judgement by the Province and the City, leave to appeal will be sought. So, we haven’t seen the final chapter in this ‘marathon’.”