The following op-ed is written by Angela Andrews of the Legal Resources Centre.
Newlands and Claremont, affluent suburbs of Cape Town, have a tragic history of forced removals. One of the largest and most established communities (classified “Coloured” under Apartheid racial classification legislation) was removed from these picturesque areas under the Group Areas Act in the late 1960s. The forced removals destabilised Claremont and Newlands and a large part of the community were relocated to the Cape Flats areas of Manenberg, Hanover Park, Mitchells Plain, Lavender Hill, Grassy Park, and even as far away as Atlantis on the West Coast – away from economic opportunities.
Claremont and Newlands were multi-racial and religiously diverse communities consisting of people from different class, race, religious and cultural backgrounds. The area, of which the suburb of Harfield was the largest part, was popular because of its proximity to buses and trains which people used as transport to work throughout the city. Moreover, Lower Claremont comprised of independent infrastructure which contained over 40 shops and small businesses. After Claremont and Newlands were declared a “White area”, large scale evictions tore the communities apart. The evictees consisted of homeowners, as well as tenants from White and Indian landlords or the City Council. In addition, Indian property owners were forced to sell to white buyers because they could not own property in a ‘White area’. What followed was massive and highly lucrative commercial and residential property developments, that benefited white property developers.
Today, the Claremont Main Road Mosque (CMRM) remains the last vestige of a community dispersed throughout the wider city and on land far from economic opportunity. The CMRM was established in 1854 and is the sixth oldest mosque in South Africa. It was the second mosque to be built outside the Bo-Kaap. It was administered for over 100 years by the Abderoef family, descendants of Tuan Guru. The first mosque Board in 1978 adopted the mosque’s constitution and established a system of democratic governance. The mosque played a prominent role in the anti-apartheid struggle during the 1980s. This legacy continues to define the role of CMRM as socially responsive in the post-apartheid period. The CMRM is the one of the few remaining links that the former residents of Claremont have to Claremont and Newlands after their forced removal. Many former residents and their descendants still attend religious services at the churches and mosques in Claremont. Therefore to this day, many who can afford to still travel to the mosque despite not being able to live in the area, and it is a reminder and connection to the home they once had, and a part of their cultural heritage. Imam Rashied Omar has been the co-ordinating Imam of CMRM since 1986 and is assisted by Imam Shaheed Gamieldien.
In 2019, the CMRM, represented by the Legal Resources Centre (LRC), attempted to rectify some of these past injustices, by objecting to a new development in the Newlands area on the basis that it made no provision for inclusionary housing and spatial justice. This article will consider the CMRM case by looking at the development of the concepts of spatial justice and inclusionary housing, the laws and regulations governing considerations of inclusionary housing and spatial justice in South Africa, and the impact of the CMRM case on subsequent cases. The article will also consider those areas where developments are still necessary to create more just cities in South Africa.
Spatial justice and inclusionary housing
In most large cities of the world low income earners live in less well-located parts of the city. In South Africa, this spatial division is greatly exacerbated by apartheid spatial planning, and past forced removals under the Group Areas Act. In Cape Town the Coloured Labour Preference Area policy furthered the policy of divide and rule and spatial exclusion through employment discrimination, accompanied by relentless deportation of Cape Town’s Black population to the homelands under the Promotion of Bantu Self Government Act 46 of 1959. In post-apartheid town planning, new low-income housing developments tend to be located on the periphery of cities in a phenomenon known as inverse densification, where the majority live far from economic opportunities, services and amenities. In Cape Town, this has been exacerbated by the rising cost of well-located residential properties coupled with a general failure of the City of Cape Town to implement social and affordable housing.
Globally, several initiatives, both voluntary and regulated, have been undertaken to address spatial inequality and to promote the achievement of the “just city” – which is defined by its ability to provide an inclusive environment, sufficient green public open spaces, food security, efficient public transportation networks, delivery of adequate basic services and access to affordable housing. Inclusionary housing – the provision of affordable housing by private developers either through requirements or incentives – began in the US in the early 1970s amid concerns about racial and socio-economic segregation resulting from “snob zoning” in primarily suburban jurisdictions. Since then, cities such as Boston, Chicago, and several in California have adopted the policy of requiring a portion of affordable homes – typically 15 percent – in new residential developments. The affordable homes are either marbled into the project, built elsewhere, or developers pay into an affordable housing fund.
Inclusionary housing uses the planning approval process to require private developers to set aside a certain number of affordable units in their market driven developments through a mechanism known as “land value capture.” This describes a process by which government recoups the surplus land value brought about by its interventions – such as granting development rights, or changes in land use, or zoning – and then redistributes these in order to promote improved housing opportunities in well-located areas for lower income earners, who could not otherwise afford to live there. Although land value capture alone might not achieve significant change in the spatial integration of residents otherwise excluded by income, what it achieves is a degree of social integration, a much-needed objective in post-apartheid South Africa.
The South African experience
In South Africa the intention to achieve inclusionary housing through town planning regulation has been provided for in the Framework for Inclusionary Housing Policy since 2007, and in principle by the promulgation of the Spatial Planning and Land Use Management Act (SPLUMA). Despite its lofty intentions of ensuring that planning decisions promote spatial justice, very little has happened at the level of implementing inclusionary housing by local authorities, save for in the City of Johannesburg. SPLUMA came into effect in 2015, placing the objective of achieving spatial justice firmly as a principle for all future development decisions. The object of SPLUMA is to correct spatial development planning and land use laws and practices that were “based on racial inequality; segregation; and unsustainable settlement patterns.” SPLUMA creates both a framework for making decisions based on principles and standards and a roadmap to decision-making that establishes a series of rules and actions to be followed by officials.
When a municipality considers and decides on a land use application, it must also have regard to the applicable spatial development frameworks, and in the case of Cape Town, the City’s positive goal is to “promote integrated settlement patterns in existing and new residential areas” and ensure that basic services are available as a “cornerstone of an inclusive City” that the City needs to promote. The SDF lists one of its goals as supporting and facilitating the creation of environments that accommodate mixed residential types and a range of income levels. It also states: “To achieve a sustainable economy, we need inclusive and equitable shared economic growth to turn around local poverty and reduce the growing income gap between rich and poor.” The Cape Town Spatial Development Overview sets out several strategies to assist in implementing the CTSDF, including: “Transform the apartheid city by encouraging a better social and land use mix in neighbourhoods”.
The City of Cape Town has adopted an inclusionary housing concept document. What is missing is a set of clear and justiciable criteria that compel the implementation of the principle of spatial justice in municipal planning decisions, and in the granting of planning development rights, through an inclusionary housing policy. The City of Cape Town has preferred to approach the matter of spatial justice through broader macro planning initiatives such as the Densification Policy, the Urban Design Policy and the Transport Orientated Development Strategic Framework. None of these policies guide decision-makers to implement the principle of spatial justice in specific land use and planning management decision taken by the municipalities. The result has been little or no investment in low cost housing in well located areas of Cape Town, and no inclusionary housing have been imposed on private developers without their consent.
Given the failure to apply the principle of spatial justice to specific planning approvals where increased development rights have been sought by developers, civil society organisations have in recent years embarked on a variety of initiatives to tackle this deficiency. They include the Development Action Group, the LRC, Ndifuna Ukwazi (NU) and others. Approaches have included enlisting the support of international groups who focus on inclusionary housing and land value capture such as the Lincoln Institute (USA) to engage the City and developers in discussions with a view to forging a consensus to implement land value capture and so promote inclusionary housing. Round table discussions with a wide range of stakeholders have been convened by the Development Action Group in conjunction with the Lincoln Institute.
At the same time, organisations such as LRC and NU have lodged objections against applications for development approval that do not address the spatial justice imperative through provision for inclusionary housing. Meetings and negotiations have taken place with developers as to how to resolve this impasse, and in some instances NU has secured the consent of developers to the inclusion of provisions relating to inclusionary housing as conditions to the approval of their development applications – and these have later been approved by the Municipal Planning Tribunal (the Tribunal) when granting the development applications.
The CMRM challenge
In 2019, the CMRM challenged the approval of a development in the Newlands area on the basis that in granting the approval, considerations of spatial justice and inclusionary housing were not taken into account by the City of Cape Town. At the heart of the CMRM’s case was the planned development of a 236-unit apartment block in Thicket Street, Newlands. The development is situated in the Southern District area of the City of Cape Town Municipality. The development is yet another planned high-rise apartment block, well situated in regard to several social, retail and economic opportunities, but out of the economic reach of Newlands’ erstwhile residents forcibly removed under the Group Areas Act.
In addition, recent significant property development and the escalation in property prices in Newlands effectively exclude these former residents and their descendants from the area, from a social and economic point of view. The City of Cape Town has created a vision to respond to these issues, balancing short-term economic development with broader city imperatives and has enacted policies to foster equality, inclusivity, and sustainability. Yet, the development was approved without a compliant analysis of whether it addresses the objectives of inclusive, equitable, and sustainable settlement patterns mandated by the legislative and regulatory framework for land use management under SPLUMA.
An objection was lodged and argued in the South Western panel of the City of Cape Town Municipal Planning Tribunal (“the Tribunal”) against the application for rezoning approval and several departures, in terms of the Municipal Planning By-Law, 2015 (‘the By-Law’). The objection was dismissed. The CMRM then appealed the granting of the development rights, contending that in granting the development rights the City had failed to demonstrate that it has applied its mind to the SPLUMA principle of spatial justice, as well as other imperatives contained in the Cape Town Spatial Development Framework. As a result, so it was argued, the Tribunal’s approval of the development application goes against the very purpose of what the Act intended, rendering it unlawful.
The CMRM took the view that the application for the development approvals in cases like the large scale development in Thicket Street fell short of addressing the issue of spatial justice in a manner which would realise the intention of the legislation, and the approval of the application would thus perpetuate racial and class exclusion in the Newlands area. For this reason, it objected to the granting of development rights, in the context where City of Cape Town does not compel applications to address the issue of inclusionary housing.
The LRC lodged an objection on behalf of the CMRM and argued it in the Tribunal on 17 April 2019. The objection stated that the application for approval of the Thicket Street development showed no evidence that the issue of spatial justice – as contained in SPLUMA – had been considered. The objection was dismissed, not because the arguments raised were faulty, but because the Tribunal did not consider itself to be in a position to ensure compliance with SPLUMA in the absence of a municipal framework to give effect to this aspect of the Act. It stated that:
“7.1.14. Notwithstanding the principles contained in SPLUMA, the MPT is not in a position to delay decision-making in the absence of an appropriate Council policy framework and an agreed upon set of criteria and mechanisms to guide the implementation of inclusionary housing in private developments”
The CMRM then appealed this decision. It argued that the planning tribunals established by the City of Cape Town are mandated in terms of the legislation to base their decisions regarding land development applications on the new land use planning regime which seeks to move away from the spatial patterns established under apartheid, provide social redress, and actively respond to current development challenges. Therefore, the appeal argued, it was imperative that the Tribunal apply its mind to both the needs of the community as well as those of developers when deciding applications, and to have regard to municipal policies as well as the intentions of the CTSDF. The CMRM argued that despite bringing to the attention of the Tribunal their historical challenges based on forced removals and the SPLUMA principles aimed at redress, the Tribunal chose not to apply its mind to the principle of spatial redress.
The CMRM argued that the Tribunal cannot legitimately use the City’s failure to provide guidance on the implementation of SPLUMA as a justification for not applying its mind to whether the development meets the requirements of the principle of spatial redress contained in the Act. If this were permissible the City by its own failure to regulate, or failure to develop implementing policy would be able to avoid complying with national legislation. In effect the Tribunal had failed to comply with a mandatory requirement of legislation governing its decision-making.
However, the appeal, like the objection, was dismissed in November 2019. The appeal decision reiterated the reason for dismissing the objection given by the Tribunal, that “notwithstanding the principles contained in SPLUMA, the MPT is not in a position to delay decision-making in the absence of an appropriate Council policy framework and an agreed upon set of criteria and mechanisms to guide the implementation of inclusionary housing in private developments.”
No criteria for the implementation of inclusionary housing in private developments have yet been determined by the Council.While the CMRM failed before the Tribunal and in the appeal, this case paved the way for several subsequent developments around spatial planning. Ndifuna Ukwazi has taken a development approval decision of the Tribunal and Appeal authority on review. The case relates to development approvals granted to the FWJK Developments for a high-rise mixed-use development planned to be in Buitengracht Street, Cape Town. The application for departure from applicable building height restrictions is one of the approvals challenged. The review asks for a declaratory order that the Tribunal is empowered to impose conditions requiring the provision of affordable housing as a means of promoting and fostering equitable access to land, access to adequate housing and spatial justice when it approves land use developments.
In another development on 21 February 2019, the City of Johannesburg Metropolitan Municipality approved the new Inclusionary Housing Policy: Incentives, Regulations and Mechanisms, to come into effect on 22 May 2010. The Policy defines inclusionary housing as “a housing programme that, through conditions attached to land use rights approvals, requires private developers to dedicate a certain percentage of new housing developments to low income and low middle income households, or to households that may not otherwise afford to live in those developments.”
This Policy makes inclusionary housing mandatory for any development within the jurisdiction of City of Johannesburg, which proposed development includes 20 dwelling units or more. There are four different options for the implementation of inclusionary housing, however, in each option, a minimum of 30% of the total units in the development must be set aside for inclusionary housing, which units must be located on the same site as the remainder of the development or within the same township. Inclusionary housing includes both rentals, as well as the implementation of inclusionary housing though ownership of such units. Finally, it remains within the powers of the National Minister to promulgate norms and standards for the implementation of SPLUMA country-wide. There is an opportunity for the Minister to require inclusionary housing policies to be implemented by municipalities – through the enactment of a regime of national norms and standards. The administration thereof will be carried out by local government. Much of the detail of such standards will have to be developed at municipal level in any event given the wide variety of considerations that apply when developing and implementing an inclusionary housing policy. Advocacy and possible litigation to ensure that the Minister carries out this function – should the City of Cape Town fail to address the issue as a result of the current litigation and other pressures – is potentially another chapter for the work of civil society and activists like the CMRM.
 Ruiz, A City and Regional Planning Masters thesis – Ysterplaat A well-located opportunity for spatial transformation
 Act 16 of 2013.
 The Ndifuna Ukhwazi Trust v the City of Cape Town and others – Western Cape High Court case no 15767/19