For years, housing debates have been dominated by the question of how many homes the government has delivered. The Constitutional Court has added another question that governments will no longer be able to avoid. Where?
The apex court last week delivered one of the most consequential socio-economic rights judgements since the landmark housing rulings of the democratic era. It declared that where the government builds affordable housing matters just as much as whether it builds it at all.
Where is as important as how many
In a unanimous judgement written by Justice Nonkosi Mhlantla, the country’s highest court rejected the notion that the constitutional obligation to provide housing can be met by simply erecting houses wherever land happens to be available. Instead, it ruled that location forms part of the constitutional standard of adequate housing because South Africa remains trapped in the geography of apartheid.
That single finding fundamentally changes the legal conversation.
For nearly three decades, governments have largely defended housing delivery by pointing to the number of units built. The Constitutional Court has now made it clear that quantity alone cannot satisfy the Constitution if poor South Africans continue to be pushed to the urban margins while economic opportunities remain concentrated elsewhere.
And the implication reaches well beyond Cape Town.
Johannesburg, Durban, Gqeberha, Tshwane and other metropolitan municipalities continue to wrestle with decisions about strategically located public land. The reasoning adopted by the Constitutional Court will inevitably become the benchmark against which those decisions are assessed.
‘A city’s architecture tells the story of its soul’
The judgment begins not with statutes or legal doctrine, but with an observation about the country itself.
“A city’s architecture tells the story of its soul,” Mhlantla writes.
He continues: “Every morning, thousands of Cape Town’s workers board buses, taxis and trains in the pre-dawn darkness, travelling for hours from the city’s periphery to its centre. Their daily journey is not just a commute – it is a living testament to the enduring legacy of spatial injustice.”
Those passages are more than literary flourish. They frame the legal question that follows: whether government has a constitutional duty to dismantle apartheid geography rather than merely acknowledge it.
The court’s answer is unequivocal.
It declared that the Western Cape government and the City of Cape Town are constitutionally obliged to treat the location of affordable housing as “a relevant factor” in determining whether housing is adequate and whether citizens enjoy equitable access to land. Those obligations, it held, require reasonable measures that include affordable housing in Cape Town’s CBD and Sea Point.
Government breaches
The significance lies not only in recognising a duty but also in finding that the government breached it.
The court declared that both the province and the city “have failed to comply with their obligations” in implementing affordable housing programmes in Cape Town’s CBD and Sea Point.
Constitutional courts are often cautious about making findings that governments have failed their constitutional obligations. Here, the court did precisely that.
The practical consequences extend beyond the Tafelberg property that sparked the litigation.
Government can no longer justify disposing of valuable state land in well-located urban areas without confronting the constitutional imperative to use such land to undo apartheid’s spatial legacy. Every future decision involving surplus public land in metropolitan areas is likely to be measured against the principles laid down in this judgment.
Equally significant is the court’s remedy.
Rather than ending the matter with declarations of constitutional principle, it retained judicial oversight. The province and the city must each file sworn reports within three months detailing completed affordable housing projects, projects under construction, available budgets, coordination with other spheres of government and future implementation plans. The High Court will remain seized with the matter and may issue further orders if necessary.
That is an unmistakable signal that constitutional promises cannot be left to policy documents alone.
Public participation
The judgment also strengthens public participation in the disposal of public land.
The Court struck down provincial regulations that allowed public participation only after a disposal agreement had already been concluded. It held that this process turned consultation into an exercise in persuading the government to reverse an existing decision rather than influencing it before it was made.
In doing so, it restores substance to public participation instead of treating consultation as a procedural formality.
Another important feature is the court’s treatment of cooperative government.
It found that the Western Cape government acted unlawfully by failing to inform and consult the national Minister of Human Settlements before disposing of the Tafelberg property. The court declared that this breached constitutional principles governing intergovernmental relations.
Restrictive statutory interpretation
The court also overturned the Supreme Court of Appeal’s narrow reading of the Constitution.
The Supreme Court of Appeal had concluded that legislation governing housing effectively displaced direct constitutional obligations. The Constitutional Court rejected that approach, holding that sections 25 and 26 of the Constitution continue to impose substantive obligations on government that cannot be diluted through restrictive statutory interpretation.
Perhaps the most enduring legacy of this judgment is that it recasts housing as a question of equality rather than shelter alone.
Mhlantla repeatedly returns to the Constitution’s promise of dismantling spatial apartheid. The Court describes affordable housing as a means of ensuring “greater racial, social and economic integration”. It places people closer to employment, transport, education and healthcare.
The judgment does not compel governments to build affordable housing on every parcel of public land. Nor does it remove budgetary constraints recognised in the Constitution.
It does something more fundamental.
It declares that apartheid geography is not merely a historical backdrop to housing policy. It is a present constitutional problem that governments are legally obliged to confront.
ALSo READ: In the City of Cape Town, apartheid spatial planning lives on
- The Constitutional Court ruled that the location of affordable housing is as constitutionally important as the number of homes built, emphasizing the need to dismantle apartheid-era spatial inequalities.
- The court found that the Western Cape government and City of Cape Town failed to meet their constitutional obligations by not including affordable housing in well-located urban areas like Cape Town's CBD and Sea Point.
- The judgment requires ongoing government accountability, mandating detailed reports on affordable housing projects and allowing continued court oversight to ensure compliance.
- It struck down regulations limiting public participation to post-decision consultation, thereby strengthening meaningful public engagement in decisions about public land disposal.
- The decision reframes housing as an equality issue tied to spatial justice, mandating that governments actively address apartheid geography to promote racial, social, and economic integration.
