The recent settlement of litigation around The Vogue property development between Ndifuna Ukwazi (NU) and the City of Cape Town (the City) inches our city one step closer to a more just and equal Cape Town.
“Litigation is a political tool that, when used strategically, can stimulate meaningful change and complement other political efforts” according to Scott Cummings and Deborah Rhode. Making use of this tool to advance change, the Vogue application (The trustees for the time being of the Ndifuna Ukwazi Trust v City of Cape Town) was launched by NU in September 2019 with the primary purpose of seeing an inclusionary housing policy urgently implemented in Cape Town.
This litigation was brought against the backdrop of drastic spatial inequality and an overwhelming crisis of housing affordability. Since the formal racial segregation of apartheid ended in 1994, private development has continued to exacerbate segregation and spatial inequality. Compared with other South African cities, Cape Town has the largest share of properties in the luxury market (valued over R1.2-million), roughly 40%, and has the highest average value of residential properties. The drastic unaffordability of homes in Cape Town is brought into sharp focus when considered against how much people actually earn. StatsSA found that in 2015, the median monthly income of a South African was just R1 128 per month, meaning that many people do not have the economic means to access adequate housing.
Added to this, the delivery of state subsidised housing for poor and working-class people on the outskirts of the city has further compounded the segregated nature of the city. The City itself has admitted that at the current rate of delivery it will take 70 years for even the existing housing backlog to be eradicated and things are only set to get worse as the economic ramifications of the Covid-19 pandemic drive more people into homelessness.
It is in this context that the state must act on its constitutional obligation to advance both equitable access to land and the right to housing by regulating the private market towards more spatially just ends. Already in use in Johannesburg, inclusionary housing is a powerful tool that can help to tackle these issues by recouping public good in the form of affordable housing from private development. While it is only one in a range of important tools needed to address the housing crisis, it is unique in its goal to both produce affordable units while simultaneously tackling segregation through the creation of mixed race and mixed income buildings and neighbourhoods — something that the other housing tools in use in South Africa have largely failed to do.
The recent settlement of this litigation with the City has achieved two major goals. First, it is now clear that the existing legal framework does indeed empower the City to impose inclusionary housing even in the absence of policy. This court order has far-reaching implications and provides the legal clarity necessary for affordable units to be secured in private developments, even while we wait for the policy to be put in place. Second, since the launch of the litigation the City has made some important strides towards making the use of inclusionary housing in Cape Town a reality.
Two months after the launch of the litigation, the City publicly committed to developing a formal inclusionary housing policy and in perhaps the most significant development yet, inclusionary housing is now officially incorporated into the City’s new draft Human Settlements Strategy, legitimising it as one of the City’s tools.
Perhaps the only downside is that the developers and landowners of The Vogue informed NU that the development is no longer financially feasible because of the economic climate and the Covid-19 shutdown. Dave William-Jones, the chief executive of FWJK which would have developed The Vogue, has accused NU of stopping the employment of 1 000 construction jobs. Although litigation delayed the timeframes of the development, inclusionary housing is premised on development going ahead, but with a meaningful and feasible inclusionary housing contribution.
Therefore it is not in favour of the aims of inclusionary housing to halt development.
For this reason, NU worked hard with the landowners of The Vogue to reach a fair agreement that would allow the development to proceed, while securing a financial contribution directly to the nearest social housing development to further subside rentals (seen as a fees-in-lieu inclusionary housing contribution). This would have meant more affordable rentals for the social housing tenants. This agreement would have been a success for all parties and provided an innovative new way for private developers to contribute to advancing spatial justice. Days before it was signed, however, the landowners regrettably informed us that the development could not proceed because of the Covid-19 economic context, something none of us could have predicted.
All in all, settlement in The Vogue matter has achieved important goals towards implementing inclusionary housing in Cape Town. But of course, there are still remaining questions that were unresolved by the litigation, such as: 1) how best to advance the principle of spatial justice in private land development; 2) whether exclusive developments, like The Vogue, are compliant with national planning law and policies implemented to redress spatial apartheid; 3) how to change the traditional exclusionary function of zoning schemes to realise affordable housing in well-located residential land uses; and of course, 4) whether the pending inclusionary housing policy will advance meaningful access to residential opportunities for working-class people who need it the most.
These remain significant questions and systemic issues in Cape Town, but as Desmond Tutu wisely said: “There is only one way to eat an elephant: a bite at a time.”
Ndifuna Ukwazi remains committed to using public interest litigation as a tool to realising spatial justice in Cape Town.