CASE: Adonisi and Others v Minister for Transport and Public Works, Western Cape and Others; Minister of Human Settlements and Another v Minister for Transport and Public Works, Western Cape and Others (CCT 126/24; CCT 128/24) [2026] ZACC 29 (2 July 2026)

Does the right to adequate housing include the right to be housed in a particular area? Two adjacent erven located in Sea Point, Cape Town, were at the core of a 10-year dispute involving this complex question. The erven, known as the Tafelberg property and owned by the Province of the Western Cape, housed a remedial school until its closure in 2010, and a block of flats until 2014, when the last of the tenants were evicted. The property was thereafter valued at R107,3 million and put to tender. The Phyllis Jowell Jewish Day School was the successful bidder with an offer price of R135 million, and in November 2015, the Provincial Cabinet approved the sale.

The first formal challenge to the validity of the sale originated from the Ndifuna Ukwazi Trust, which successfully challenged the transaction on the basis that the notice of the intended sale was not published in any isiXhosa newspaper. As a result, the Province published fresh notices and received an extensive public response of some 5,000 submissions, many of which focused on the possibility of using the site for affordable housing. In response, the Province commissioned a financial assessment, which concluded that affordable housing in that location will be significantly more expensive than alternative developments elsewhere. After considering comments received from the public in response to the financial assessment, the Province also maintained the view that the Tafelberg property was not situated in a “restructuring zone” as that term is defined in the Social Housing Act, 16 of 2008. The Province thereafter resolved to proceed with the sale to the Day School.

The decision to proceed with the sale was challenged by both the Trust and the National Minister of Human Settlements. The Trust argued inter alia that both the Province and the City of Cape Town had breached their constitutional obligations to undo apartheid’s spatial inequalities in central Cape Town. The Minister argued that the Province had unlawfully failed to consult the National Government before disposing of the land, as required by the Intergovernmental Regulations Framework Act, 13 of 2005.

The Applicants were successful in the High Court, but the Supreme Court of Appeal ruled that neither the Constitution nor housing legislation obliged the government to provide social housing at any specific location. The Trust and the Minister thereafter appealed to the Constitutional Court.

At the heart of the issue were the provisions of Sections 25(5), 26(1) and 26(2) of the Constitution Act, 108 of 1996, which state as follows:

• “25(5)  The state must take reasonable legislative measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
• 26(1)    Everyone has the right to have access to adequate housing.
• 26(2)    The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”      

The Province submitted that the above provisions are subject to the available resources of the State. Whilst acknowledging its section 25(5) obligation to enable equitable land access, the Province argued that this does not extend to providing social housing in locations chosen by rights-holders because these provisions do not dictate which measures the State must take giving effect to the right. Instead, these provisions require the measures to be reasonable. The reasonableness inquiry focuses not on whether better alternatives exist, but whether the chosen measures are reasonable, recognising that public expenditure decisions must be deferred to the responsible State organ, not the courts.

The City of Cape Town argued that it was wrong for the applicants to insist that the legacy of apartheid can be achieved by prioritising one specific area. Demanding social housing at the site of the Tafelberg property would create undue preference and ignore greater Cape Town’s housing needs. Further, the City contended that it has taken reasonable steps to provide social housing within its means; that no legislation requires geographic-specific social housing; and that the City faces land limitations despite requesting State land release.

The Court held that there are few settings in which South Africa’s endeavour for constitutional transformation is more vital than spatial inequality and its relationship to the right of adequate housing. The elaborate system of the Group Areas Act, influx control and forced removals was designed to create and entrench spatial segregation. Townships were established on the peripheries of “white” towns, separated from economic opportunities and schools. The constitutional project is inherently about reversing this spatial injustice. The Constitutional rights would ring hollow if actions to fulfil housing and land rights did not include a consideration of spatial apartheid. Without deliberate and sustained restorative State action, spatial inequality is likely to deepen rather than diminish over time. Access to adequate housing in the context of a city sets in motion a ripple effect that implicates a penumbra of rights revolving around habitation, appropriation and participation.

The Court further stated that: “A housing system that only considers providing social and affordable housing on the periphery of urban centres falls short of the obligation to progressively realise the right to adequate housing. Such a system of peripheral housing would deny people meaningful access to the city, leaving them with limited and inadequate options.” Adequate housing “necessarily includes security of tenure, affordability, habitability, accessibility, and, crucially, location. In view of the above, the Court upheld the Appeal.

The Adonisi judgment is a landmark in the South African context of what constitutes adequate housing as expressed in our Constitution. Although this decision does not prescribe a specific weight to be attributed to spatial justice concerns versus other societal obligations, it clarifies that the state cannot fulfil its constitutional housing obligations merely by developing available, inexpensive land on the fringes of urban developments. Rather, when disposing of public land, all levels of government must actively consider how that land can be utilised to redress the systemic effects of apartheid. Where affordable housing is built is as important as whether it is built at all.