18 Jul 2013
In the case, Stellenbosch Municipality v Van Wyk and Others (1549/2012)  ZAWCHC 18 (8 February 2013), the court granted the Stellenbosch Municipality’s application for an interdict to prohibit a property owner from offering student accommodation if the property zoning only allows for a dwelling house to be occupied by one family.
The owner must obtain the required permission from the municipality or face the penalties.
According to Smith Tabata Buchanan Boyes (STTB), this is an important judgment to anyone offering accommodation to students.
View the judgement here.
STTB explains that this matter deals with an application by the Stellenbosch Municipality for an order interdicting Ms Van Wyk from providing student accommodation on her residential property in Stellenbosch, as it is contrary to the provisions of the applicable zoning scheme.
The relevant facts are that Ms Van Wyk and her two daughters live on an erf zoned residential.
According to the relevant zoning provisions, the dwelling house on the erf may only be occupied by a single person or family.
However, Ms Van Wyk housed not only her family, but an additional seven students on her property.
Her neighbours complained to the municipality and the latter, after doing an inspection, sent Ms van Wyk a letter advising her that she was in contravention of the zoning laws and that she should rectify the situation.
She then lodged an application with the municipality for ‘special development rights’ (as allowed in terms of the Zoning Scheme Regulations) to allow for the accommodation of four additional persons and to use the property for the accommodation of students for reward.
Pending the outcome of the application for special development rights, and after the municipality had again sent a letter to Ms Van Wyk advising her to refrain from contravening the zoning provisions, the municipality applied to court for an interdict prohibiting Ms Van Wyk from continuing her illegal activities. (After the issue of summons, Ms Van Wyk was informed by the municipality that her application for special development rights failed. She lodged an appeal thereto with the municipality.)
Ms Van Wyk defended the court application on the ground that, among other things, she was in the process of applying for the required permission.
In addition, she argued that even if the court found that she was in contravention, it should exercise its discretion not to grant the interdict as there was such a dire shortage of student accommodation in Stellenbosch.
1. Ms Van Wyk clearly contravened the zoning provisions and continued to do so, even after the municipality advised her of her illegal conduct and requested her to discontinue.
2. In addition, although Ms Van Wyk had applied for special development rights, the application was in respect of accommodating four students only, being the maximum allowed in terms of the special development provisions.
As such, her appeal against the municipality’s rejection of the initial application is unlikely to succeed.
STTB says the court therefore granted the interdict, holding that it was unable to exercise its discretion in favour of Ms Van Wyk and the students who were affected thereby, since to do so would amount to the condonation of criminal behaviour.
In this regard, the court noted that it was relevant that Ms Van Wyk’s neighbours’ complaints showed a serious infringement of their property rights, which was still continuing.
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