There is a piece of land in Sea Point that has just taught South Africa a lesson in constitutionalism. For over a decade, the old Tafelberg school site sat at the centre of a fight between two entirely reasonable-sounding propositions: that government may sell what it owns, and that some land is too important, constitutionally, to be sold like any other. On 2 July 2026, the Constitutional Court settled that fight. In a unanimous judgment written by Justice Mhlantla, the Court declared the Western Cape government’s 2015 sale of the Tafelberg property unlawful, overturned the Supreme Court of Appeal’s 2024 ruling that had allowed the sale to stand, and ordered the province and the City of Cape Town to report back on how they intend to deliver affordable housing in the Cape Town CBD and Sea Point.

The background matters. The Tafelberg site, once home to a remedial school, sits close to jobs, transport, schools and hospitals in one of Cape Town’s most opportunity-rich suburbs. In 2015, the province sold it to a private school for R135 million, having earlier been advised by its own Human Settlements officials that the land was needed for social housing. Activists, led by Reclaim the City and Ndifuna Ukwazi, argued this was spatial apartheid repeating itself through a property transaction. The High Court agreed in 2020. The Supreme Court of Appeal disagreed in 2024, holding that neither the Constitution nor housing legislation requires government to build housing at any particular address. The Constitutional Court has now rejected that reasoning outright. Its central finding is disarmingly simple: where affordable housing is built matters as much as whether it is built at all.

That is the golden thread running through this judgment and it should run through every municipal and provincial land decision that follows it. Section 26 of the Constitution does not merely require government to put roofs over heads. It requires the progressive realisation of access to adequate housing and the Constitutional Court has now confirmed that location is not incidental to that right but constitutive of it. A house four hours from work, by taxi money the household cannot spare, is a materially lesser fulfilment of section 26 than a house near a train station. Section 25, so often invoked defensively by property owners, in fact cuts the other way here too: it expressly identifies land reform and equitable access to land as part of the public interest and it obliges the state to take reasonable measures to redress the racial dispossession of the past. Read together, sections 25 and 26 do not merely permit spatial redress. They require the state, especially where it holds well-located public land, to take reasonable, transparent and properly planned measures to make that redress real.

SPLUMA, the Spatial Planning and Land Use Management Act of 2013, also matters here because it gives practical planning language to this constitutional duty. It requires spatial planning to advance spatial justice, redress past spatial and development imbalances and guide municipalities through spatial development frameworks. In plain English, municipalities may not plan as though apartheid’s map has disappeared. Instead, their land-use choices must help undo it.

But the Foundation’s argument is not, and should never be mistaken for, an argument that state land must never be sold, or that market value is an irrelevance. The Constitutional Court did not say that. What it said, in essence, is that government cannot treat well-located public land as an ordinary commercial asset when it is also a tool for undoing apartheid’s geography. The Western Cape’s own regulations under the Land Administration Act of 1995 permitted public participation only after a disposal contract had already been signed. That is not participation. That is notification. A public invited to comment on a decision already made is not exercising the rights guaranteed by sections 32 and 33 of the Constitution – access to information and just administrative action – it is being managed. The Court’s insistence that consultation must happen while options remain genuinely open is, in truth, no more than a restatement of what section 195 already demands of public administration: transparency, accountability and responsiveness that means something.

This has direct force ahead of the 4 November local government elections. Sections 152 and 153 require every municipality to structure its planning, budgeting and asset management around the basic needs and development of its community, not around whichever bid clears the highest price. Voters would do well to ask their local candidates a blunt question: does your municipality know what land it owns, where it is located and whether it has been assessed for its constitutional value before being earmarked for sale? Most cannot answer. Tafelberg means they will increasingly have to.

None of this licenses arbitrary state power over property. Expropriation still requires law of general application and just and equitable compensation, exactly as section 25 provides. But disposal of land the state already owns is a different question and it is now beyond serious dispute that constitutional stewardship, not maximum short-term revenue, must guide it. Government does not betray constitutionalism by using well-located public land to expand urban inclusion. It betrays constitutionalism when it disposes of that land arbitrarily, opaquely, or without a public genuinely allowed to be heard before the ink dries.

Tafelberg was never only about Sea Point. It is a message to every municipality holding land near a train line, a hospital, or a school: that ground is not simply yours to sell. It belongs, in a very real constitutional sense, to the unfinished work of undoing apartheid’s map.

For more on this topic read: Spatial Segregation: The Invisible Walls Shaping South Africa’s Youth – https://fwdeklerk.org/spatial-segregation-the-invisible-walls-shaping-south-africas-youth/