Location is not a luxury - The Constitutional Court rewrites the rules on housing and spatial justice

By Michael Evans, consultant, Thomas Karberg, senior associate and Lula Grant, candidate attorney, Webber Wentzel

On 2 July 2026, the Constitutional Court affirmed the fundamental importance of location as an aspect of adequate housing, cementing the constitutional imperative to redress spatial apartheid in the landmark judgment of Adonisi and Others v Minister for Transport and Public Works and Others, Western Cape[1] (Adonisi).

The case centred on the Western Cape Province’s disposal of what is colloquially known as the Tafelberg property, situated in Sea Point. Although the dispute had its genesis in the sale of a specific site, the judgment has profound implications for the future of housing policy and the disposal of state land across South Africa. It signals, unambiguously, that the Constitution demands more than the provision of housing, it demands that housing be in the right place.

History of the site

The Tafelberg property, which previously housed a remedial school and a block of rental units, had stood empty for some time. Despite significant government, public and institutional interest in utilising the site for social housing, the Province resolved in March 2015 to sell it. Put out to tender, it was sold to the highest bidder at a price of ZAR 135 million.

In terms of the Western Cape Land Administration Act (WCLAA) and its regulations, the Province published notices of the disposal, inviting public comment on whether it should resile from the sale. Following a successful challenge to the lawfulness of the initial, inadequate notice and comment procedure, a fresh process was undertaken in May 2016, eliciting approximately 5,000 submissions, many of which focused on the possibility of using the site for affordable housing. Despite this interest, and after producing a model on the feasibility of social housing options on the property, the Provincial Cabinet decided to proceed with the sale.

Litigation history

On 5 May 2017, Reclaim the City, including four of its founding members, and the Trustees of the Ndifuna Ukwazi Trust launched an application in the Western Cape High Court challenging the decision to sell. The applicants sought a declarator that the City and the Province had not complied with their constitutional and statutory obligations to provide equitable access to housing and land, and that the decisions regarding the Tafelberg sale should be set aside.

A second application was filed by the National Minister of Human Settlements and the Social Housing Regulatory Authority, seeking an order reviewing the decision to sell the property on the basis that the Province had failed to consult in terms of the Intergovernmental Relations Framework Act before its disposal of the land.

The applications were consolidated and the High Court found in favour of the applicants on both fronts. On appeal, the Supreme Court of Appeal set aside the orders of the High Court, rejecting the contention that the Province and the City had failed to meet their constitutional obligations regarding social housing delivery.

The Constitutional Court’s judgment

In a unanimous judgment penned by Justice Mhlantla, the Constitutional Court held that both the City and the Province had failed in their obligations to realise the right of access to adequate housing, a right that includes suitably located and affordable housing. The court found that the Province had failed to meaningfully engage with the public in the disposal process and declared certain regulations of the WCLAA unconstitutional and invalid for providing for public participation only after a disposal contract had been concluded. The court also found that the Province had failed to comply with the requirements of the Government Immoveable Asset Management Act[2] in the disposal process and failed in its duty to consult national government.

The centrality of spatial justice

The Constitutional Court’s judgment is grounded in a careful historical exposition of the legal framework of displacement and segregated urban development that gave rise to the legacy of spatial injustice and exclusion, a legacy that persists today along race and class lines and remains one of the most systemic barriers to equality in the city of Cape Town. Against this backdrop, the court considered the content of the right of access to adequate housing in section 26(1) of the Constitution and the concomitant obligation on the state to take reasonable legislative and other measures to progressively realise it under section 26(2).

Central to this analysis was the court’s understanding of housing as something “more than brick and mortar.”[3] The court framed housing as the nexus through which a wide range of socio-economic and political rights are realised and as being intimately connected to the ability to participate in the social and economic fabric of a city. The court stressed that where people live influence their access to education, employment, healthcare, social amenities, and services. When assessing the adequacy of housing provision, consideration must therefore be given not only to the provision of shelter but also to its location in relation to these opportunities and benefits. On this basis, the court focused its attention on the need to provide adequate affordable housing within the Cape Town CBD and neighbouring suburbs such as Sea Point, Woodstock, and Salt River, acknowledging frankly that little had been done to undo the displacement of people under apartheid.

Fundamentally, the court emphasised that well-located housing is not a “nice to have” but a necessary feature of any constitutionally compliant housing programme, particularly in a landscape still shaped by apartheid spatial planning. Housing, the court held, has the potential to transform socio-economic relations and spatial inequities; without principled intervention, it risks entrenching patterns of exclusion rather than dismantling them.

In recognising location as a defining aspect of adequacy, the court invoked South Africa’s international law obligations and drew on its earlier jurisprudence, in particular the Commando[4] judgment handed down in December 2024. There, the Constitutional Court developed the content of the right to housing to include considerations of location in the context of the City’s emergency housing programme. Long-standing residents of a property in Woodstock facing eviction had engaged with the City to secure alternative accommodation and received offers of temporary emergency housing in far-flung areas, disconnected from their livelihoods and communities. The Constitutional Court found that the City’s emergency housing policy and its offer of alternative accommodation were inconsistent with section 26 of the Constitution on the grounds that they failed to consider location and to redress the legacy of spatial apartheid. In Adonisi, the court endorsed the principles developed in Commando and confirmed that they apply with equal force to the state’s broader obligation to progressively realise the right of access to social and affordable housing.

What the evidence showed, and what it did not

Having clarified that the obligation to provide adequate housing includes the provision of well-located social and affordable housing, the court examined the City and Province’s post-apartheid housing policy in detail. Although Province both produced evidence of policies and proposed projects, the court found that the overwhelming majority remained confined to the urban periphery. There was insufficient evidence of interventions capable of addressing the demand for affordable housing within central Cape Town and nearby economic nodes. The court concluded that "no substantial progress has been made in terms of concrete development plans, budget allocations, regulatory approvals or implementation frameworks"[5].

The finding is significant. It is not a criticism of housing delivery in the abstract. It is a finding that housing policy designed exclusively to provide affordable housing on the urban periphery falls short of the constitutional obligation to progressively realise the right to adequate housing. Such an approach reproduces spatial inequality, denies people meaningful access to the city and creates poverty traps on its outskirts. The Constitution demands more.

The orders

The court granted a supervisory order requiring the Province and the City to submit a report to the Western Cape High Court within three months of the date of judgment, detailing, among other things, the policies and programmes for the provision of affordable housing in the CBD and the steps taken to give effect to their constitutional obligations. The court also declared two regulations under the WCLAA unconstitutional and invalid.

The court further acknowledged the important role of national government, which "has a duty to allocate funding for initiatives and projects to alleviate spatial apartheid."[6]

What this means going forward

The highest court has spoken. More than 30 years into a democracy that continues to replicate the scars of its past, location can no longer be sidelined as a feature of housing policy. Measures taken by organs of state in the provision of housing must be attentive to location and designed to provide meaningful access to urban space and opportunity if they are to pass constitutional muster.

If organs of state heed its call, Adonisi has the potential to catalyse innovative housing policy and interventions aimed at redressing, rather than perpetuating, the spatial legacies of the past. The judgment enjoins organs of state to employ the full range of tools available, including the strategic use of state land, to reassert the transformative value of housing. In doing so, organs of state must remain alert to the way in which contemporary drivers of exclusion map onto historical patterns of segregation.

As Justice Mhlantla warned, “without deliberate and sustained restorative State action, spatial inequality is likely to deepen rather than diminish over time.”[7] The true test will emerge once the Province and City present their reports to the High Court and the Adonisi applicants have had an opportunity to respond. What is already clear is this: housing policy that fails to meaningfully address spatial inequality is no longer constitutionally tenable.

Ends…

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[1] Adonisi and Others v Minister for Transport and Public Works, Western Cape, and others; Minister of Human Settlements and Another v Minister of Transport and Public Works, Western Cape, and Others [2026] ZACC 29

[2] 19 of 2007.

[3] Government of the Republic of South Africa v Grootboom [2000] ZACC 19 at para 35.

[4] Commando v City of Cape Town [2024] ZACC 27. It is noteworthy that the Ndifuna Ukwazi Law Centre were the attorneys for the applicants in both the Commando and Adonisi cases.

[5] Paragraph 159.

[6] Paragraph 272.

[7] Adonisi at para 99.