Section 26 of the Constitution reads identically in 2026 as it did in 1996, and there has been no attempt – much less a successful one – to amend it. Yet, this provision of our so-called “highest law” means something completely different today from what it meant three decades ago. How is this possible? Hint: it’s the vibes.
On 2 July 2026, the Constitutional Court handed down its judgment in Adonisi v Minister for Transport and Public Works, Western Cape (known as the “Tafelberg judgment”).
The case concerned the 2015 disposal by the Western Cape Government of the former Tafelberg Remedial School site in Sea Point, Cape Town. The property had been declared surplus and sold by tender to the Phyllis Jowell Jewish Day School for R135 million. As a matter of policy, it was decided that these were educational premises and would remain so.
Housing activists associated with Ndifuna Ukwazi and Reclaim the City had long argued that the site should instead be used for “affordable housing” to help undo the legacy of “spatial Apartheid”. They challenged the disposal on multiple grounds: inadequate public participation, failure to consult the Minister of Human Settlements, and non-compliance with asset-management planning regulations.
The High Court had set the sale aside. The Supreme Court of Appeal (SCA) overturned that decision.
The Constitutional Court upheld an appeal against the SCA and, among other things, declared the 2015 disposal unlawful and invalid. The Western Cape Government and the City of Cape Town were ordered to file detailed reports under oath within three months, setting out their policies, projects, budgets, and coordination efforts for “affordable housing” in the Cape Town CBD and Sea Point area (and nearby).
Had the Court confined itself to these procedural defects – the “box-ticking” participation process conducted over the Christmas period with key details withheld, and the failure to consult the central government – the judgment might have been unremarkable in principle. It would have enforced existing constitutional requirements of legality, transparency, and intergovernmental consultation. Legal certainty and the rule of law would have been strengthened rather than undermined.
“Spatial justice theory”
But the Court did not stop there.
In paragraph 100 of the judgment, Justice Nonkosi Mhlantla, writing for a unanimous bench, stated that “spatial justice theory and the concept of ‘the right to the city’ were introduced into section 26 jurisprudence by Thubakgale and Commando.”
The two earlier judgments are Thubakgale v Ekurhuleni (2021) and Commando v Cape Town (2024).
Drawing on these, the Court held that location is integral to the constitutional right to adequate housing (that is, section 26); that the state must actively consider and advance spatial justice when disposing of “well-located” public land; and that the 2015 sale had perpetuated Apartheid-era spatial patterns by removing a strategic inner-city asset from the pool available for “transformative” housing delivery.
The practical effect is that the property cannot lawfully be alienated unless the Transformationist elite thinks it advances social justice. A Jewish school? In the world of 2026? Definitely not good vibes!
That the Court’s judgment was unanimous should give all constitutionalists pause.
Section 26 of the Constitution provides in full:
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
Nothing in that text, or in the structure of the Bill of Rights, refers to “spatial justice”, “the right to the city”, addressing “spatial Apartheid” as a distinct and totalitarian constitutional imperative, or requiring courts to treat the location of housing as a super-ordinate factor that overrides ordinary determinations by the democratic branches around land use and housing priority.
Section 26 is a classic socio-economic provision of the kind found in many modern constitutions: it guarantees access to adequate housing and imposes a duty of progressive realisation through reasonable measures within available resources. It is not a special provision with a cryptic, hidden meaning that only the wise sages on the Constitutional Court bench steeped in urban theory and academic elaborations of “spatial justice” are able to discern, while the rest of us mere plebs are too stupid or uninformed to understand what section 26 “really” means.
Transformationism strikes again
As I argued in last week’s column on Dennis Davis’s approach to constitutional interpretation, the Transformationist discourse project that has shaped much of South Africa’s post-1994 jurisprudence sought to convince the public and courts that constitutional meaning is not fixed and is instead infinitely malleable (when it suits them!).
This intellectual discourse has its roots in Critical Legal Studies and related currents that gained influence in South African legal academia and activism from the 1980s onwards.
On that view, legal texts are inherently indeterminate. Appeals to “objective” meaning are said to be a trick that only protects the status quo. Judges are understood to exercise a broad discretion on the legal questions that come before them (with no clearly correct answer), and given that reality, they ought to exercise that essentially unlimited discretion in service of socially desirable outcomes: “transformation”, redistribution, the supposed undoing of historical injustice.
That, instead of, you know: being constrained by the plain terms of the Constitution itself.
This approach is on full display in the Tafelberg judgment.
The Court did not discover “spatial justice theory” in the words of section 26. It imported the theory from academic discourse, then treated the theory as controlling the meaning and application of the constitutional text. The text became a peripheral consideration. The social goal – of spatial restructuring according to a particular ideological template – became the overriding consideration.
This is precisely the inversion that Transformationist interpretation has long championed.
Judicial deference
The Court in Tafelberg did not merely err legal-philosophically, but also on the question of consistency with precedent. In the past, the Constitutional Court insisted repeatedly on the separation of powers and judicial deference in polycentric policy matters.
In cases involving trade remedies and economic regulation, such as the 2010 ITAC judgment, and in matters of exchange control and capital movements, such as the 2015 Shuttleworth judgment, the Court stressed that it is not the function of judges to substitute their own policy preferences for those of the executive or legislature.
In the domain of affirmative action and redress legislation, the Court has likewise emphasised that the democratic branches enjoy a wide margin when choosing the means to address Apartheid’s legacy, even where those means sit uneasily with judges. Deference, on that account, protects democratic legitimacy and recognises the limits of judicial competence in complex social and economic ordering.
No such deference appears in Tafelberg.
The City of Cape Town and the Western Cape Government: elected and accountable bodies with their own housing policies, budgets, and assessments of competing priorities, had determined that the site should be disposed of to fund other public purposes. It was the site of a school, and it will remain the site of a school.
The Court set that aside, not (primarily) because it violated clear statutory or constitutional prohibitions on the disposal itself, but because it conflicted with a judicially constructed preference around “spatial justice”. The judges effectively assumed the role of city planners for Sea Point, guided by activist-academic testimony and an extra-textual theory, rather than by the democratic mandate or the constitutional text.
Of course, the ideology of Transformationism tells us what happened here.
In ITAC and Shuttleworth, the state’s power to interfere in private affairs was at stake. This veto mechanism is a core feature of Transformationist norms, and therefore the courts had to defer to government’s designs. But in Tafelberg, an organ of state was acting in a way that did not advance the Transformationist cause and could in fact limit the state’s designs, hence the courts had to intervene.
The rule is repeatedly affirmed that the courts will restrain themselves when the state is pursuing Transformation, and be active when the state is not.
Constitutional amendment
The Tafelberg judgment, with its precursors, amount to nothing more or less than an amendment of the Constitution by judicial means.
The proper route to entrench a new substantive obligation – that is, that section 26 now includes a judicially enforceable duty to pursue “spatial justice” through the strategic retention and development of well-located state land – lies in section 74 of the Constitution.
Section 74 provides for amending the supreme law. It requires public participation on a national scale and a supermajority in Parliament. It is deliberately onerous precisely because the Constitution is meant to be stable enough to provide a common framework for a plural society, whose members disagree profoundly about substantive justice, policy, and what the good life looks like.
When the text remains unchanged, but its operative meaning is transformed through the intervention of activist-academics steeped in byzantine academic theories, ordinary South Africans lose the ability to know what the supreme law requires by simply reading its words. To know the “real” Constitution, South Africans must now instead master an evolving body of academic literature whose content is not fixed by the text itself.
There is No Supreme Constitution
Professor Koos Malan warned of exactly this development in his 2019 book, There is No Supreme Constitution.
The formal claim that the Constitution is supreme, he argues, masks a substantive reality in which constitutional law tracks the prevailing convictions of the ruling political and legal elite. Transformationism – a discernible, cohesive ideological project drawing on Marxist socialism, neo-Marxism, postmodernism, and Critical Legal Studies – forms the philosophical basis of those convictions.
The Constitutional Court is not an external arbiter of law, but an institutional carrier of official ideology. What appears in its ideologically charged judgments as innocuous constitutional interpretation is frequently the translation of extra-constitutional theory into binding law, without the legitimating processes the Constitution itself prescribes for fundamental change.
The Tafelberg judgment confirms Malan’s diagnosis and renders it more difficult to ignore.
The Court’s candid acknowledgment in paragraph 100 that it has been importing “spatial justice theory” into section 26 jurisprudence is, in one sense, refreshing in its honesty. In another sense it is deeply troubling, because it reveals how little remains of the pretence that the Court is merely giving effect to the Constitution as written.
The text of section 26 in 2026 is identical to the text of section 26 in 1996. And yet the section 26 that existed in 1996 is categorically and substantively different from the section 26 that exists in 2026. To understand what section 26 means today, South Africans will need to go and buy thick academic tomes and collections of journal articles from American and European universities to understand what “spatial justice theory” (and thus section 26) is all about.
Constitutional recovery
Constitutionalists who take the written Constitution seriously cannot respond to this development by accepting this judgment – as many supposed constitutionalists already have – due to its positive vibes. Digging our heads in the sand and declaring, as many do, “Well, we disagree, but the Court has spoken”, also will not suffice. Finally, abandoning the Constitution, as others now recommend, is similarly not conducive to constitutionalism.
We cannot afford to concede the field of constitutional law, constitutional understanding, and constitutional practice to those who treat the Constitution as infinitely malleable raw material for social engineering.
The real alternative is to insist, explicitly and without apology, that fidelity to the Constitution means fidelity to its text, its structure, and the values and principles it actually contains, rather than the latest accretion of activist-made doctrine layered on top of it. One can be a constitutionalist, or one can be a constitutional-courtist. These are not the same phenomenon.
The responsibility to police the boundary between constitutionalism and constitutional-courtism falls on conscientious legal academics, legal practitioners, and especially an informed public that understands that no constitution contains an internal mechanism capable of preventing its supposed judicial guardians from misconstruing it.
The finality of Constitutional Court decisions on disputes does not mean that every pronouncement emanating from that court is constitutionally endorsed or beyond criticism. A healthy constitutional culture requires precisely the opposite: a willingness to distinguish between the Court and the Constitution, and to say so when the former departs from the latter.
The thunderous applause that has greeted the Tafelberg judgment in many quarters is applause for the Court’s willingness to step outside the Constitution and to impose, through the ostensible medium of “interpretation” (in fact, the construction of new meaning), a substantive vision of spatial ordering that the constitutional text actually prohibits.
That is not something to celebrate.
It is a further illustration of how far the practice of South African constitutional law has drifted from the text that is supposed to authorise and limit it. Those who still believe that the Constitution belongs to all South Africans, and that its meaning should be discernible from what it says rather than from what activists and theorists wish it says, have work to do.
[Image: City of Cape Town, South Africa by jacoblund]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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