How the symbolic Tafelberg win defeats housing access

The ConCourt’s recent Tafelberg judgment may promote constitutional ideals but will inevitably impede access to affordable housing.

This is what worries Renier Kriek, Managing Director of innovative home loan provider Sentinel Homes.

Access and Location

“The Court held that location is essential to adequate housing,” he says. “But how much weight should location carry when public money, public land, planning capacity and housing supply are all severely constrained?”

Cases like Tafelberg become troubling when they prioritize symbolic spatial integration in affluent areas over maximizing housing access for the greatest number of South Africans.

Kriek says the Constitutional Court is quite right to assert that location is important.

Section 26 of the Constitution gives everyone the right to have access to adequate housing.

A house is not adequate simply because it has walls, a roof and a toilet.

Where it is situated affects how easily people can reach work, schools, clinics, transport, and opportunities.

“So, yes, location does matter because it is integral to housing adequacy, which is part of the Constitutional right, but when location for some is elevated above access for all, that defeats the goal of Section 26,” says Kriek.

The Tafelberg judgment introduces into our law the idea of spatial apartheid as a central villain, and Cape Town’s geography of exclusion is certainly very real.

However, the judgment does not grapple with the actual mechanics of the housing market, and fails completely to diagnose the real reasons for housing shortages.

Speed Over Distance

South Africa’s housing problem is not only that poor people live far from rich suburbs.

It is that we build far too slowly.

Our metros produced roughly 265,000 residential units over a decade, while the backlog sits at about three million homes.

Development timelines are absurd.

Planning approvals can take years.

Agricultural land consents from the Minister of Agriculture, required in some cases, can take a decade or longer.

Brownfield concept-to-move-in timelines for new housing developments can run from seven to eighteen years.

“South Africa doesn’t need more constitutional poetry about housing. It needs more housing. And this judgment will make that harder,” says Kriek.

Those who must now implement policies accommodating the Tafelberg judgment do not have a Constitutional Court judge on a shelf.

So, to avoid adverse judicial scrutiny, any new procedures will be over-engineered, burdensome, and time-consuming.

In plain English: more meetings, more memos, more checklists, and more lawyers, but fewer homes.

Consequences and Cost

This will not stop in Sea Point.

Local and provincial governments across the country will need to revisit policies, land release procedures, participation processes, disposal rules and housing plans.

Many programmes already in planning will be pushed further down the pipeline to be reassessed in the new paradigm.

Officials will not respond with elegant constitutional minimalism.

They will respond with risk management.

“The Court has produced a judgment about access, but the bureaucracy will produce a process about process,” says Kriek.

That matters because every additional layer of compliance and administrative uncertainty is a tax.

A tax that is not paid by housing suppliers, but consumers through higher prices, higher rents, higher deposits, stricter credit, slower projects, and fewer opportunities for housing access.

A Deterrent to Investment

Private capital is not optional in solving South Africa’s housing crisis.

The fiscus cannot fund, build, finance and manage the millions of homes required without outside help.

If the rules make participation slower, riskier or less predictable, private capital will not hold a seminar about constitutional theory.

It will just go somewhere else - not because investors hate poor people, but because capital has choices.

Investments in listed shares rather than housing, for instance, do not raise the spectre of a decade-long legal struggle over spatial apartheid concerns.

The Masses Who Will Suffer

Ubuntu is often invoked as compassion for the person before the court.

Properly understood, it also requires concern for the wider community.

The household in court matters, but so do the many invisible households that never get approved, never get a rental, never enter the formal market and never appear in the papers.

“They are no less entitled to human dignity just because they are unseen,” says Kriek.

The mistake is to treat symbolic spatial correction as if it automatically advances housing access.

Sometimes it may, often it will not.

A constitutional housing policy must ask: how many homes, how quickly, at what cost, with what transport, with what infrastructure, and with how much private capital?

“If those questions are not asked, housing rights become moral theatre,” says Kriek.

An Alternative to Location

A focus on location suggests that travelling is a concern.

The ConCourt relied heavily on this concern in the judgment.

The need to commute is relevant, but is not automatically proof of constitutional failure.

“Access can be created through location, but also through connectivity,” says Kriek.

The Western Cape has reduced its dependency on PRASA, and is well on its way to obtain devolution, meaning it will operate the commuter rail service itself.

Due to its efforts subsidised commuter rail is again becoming a meaningful part of its access story.

Likewise, the Cape Town Integrated Rapid Transport System (MyCiTi) is leading the country in public transport construction.

“If public transport works, housing rights considerations cannot be reduced to whether or not a household lives in Sea Point,” says Kriek.

Yet, the judgment gives insufficient weight to this distinction.

It prefers the symbolism of visible inclusion in high-cost neighbourhoods over the harder empirical question: how many households gain access, at what cost, and how quickly?

If limited public funds produce a small number of subsidised units in one of the most expensive neighbourhoods in the country, fewer households will be assisted elsewhere.

That is simple arithmetic, not a political slogan.

“Sea Point symbolism is expensive,” says Kriek.

Faster Access, Bigger Wins

The Court is right that location matters.

However, South Africa’s deeper crisis is that it cannot supply affordable housing fast enough, and location concers are in contest with actual solutions to this this problem.

Now, the Tafelberg judgment threatens to create additional planning delays that put the larger community at risk of continued and interminable homelessness.

“The Tafelberg judgment may increase the vibrancy and energy of a suburb such as Sea Point, but unless we as a country build faster, release land quicker and make capital participation rational, it will not solve and may well worsen the housing crisis,” says Kriek.

Section 26 promises access to adequate housing.

The scale and speed at which access is achieved should be the ultimate test.

ENDS