Judgment in the matter of Kensington Residents and Ratespayers Association NPC v Unoda John NO and others was handed down on 21 May 2019 in the Gauteng Local Division of the High Court by Judge Carelse. This matter was handled by Chantelle Gladwin-Wood (Partner) and Maike Gohl (Senior Associate) at Schindlers on a pro-bono basis, and argued by Adv. Timothy Paige-Green of the High Court Chambers.
Facts as per the Court Papers
In this case the Respondents are the owners of 6 properties, which were being run as a backpackers and semi-permanent student accommodation. However, the properties are all zoned as residential properties, which prohibit the use of the properties for business purposes, and accordingly the use of the properties was illegal. Moreover, the owners of the properties erected buildings on the properties and made changes to the existing structures to cater for their business, without obtaining the necessary approvals from the City of Johannesburg (“the City”).
The manner in which the properties were run, was causing excessive noise pollution, overcrowding, insufficient refuse removal which led to health hazards, and insufficient fire safety, which put the entire neighbourhood at risk and reduced the property values. The neighbours of the properties and the Applicant (called the “KRRA”) had been trying to have the owners of the properties comply with the City’s various bylaws for approximately 15 years without success. This is despite numerous complaints being lodged with the City, the district councillor and the JMPD. For approximately two years, Schindlers on behalf of the KRRA attempted to have the City take legal action against the owners of the properties, as the “stop notices” and penalties instituted by the City were having no effect.
After it became apparent that the City would not be taking legal action against the owners of the properties despite repeated requests for it to do so, the KRRA launched court proceedings on behalf of the entire Kensington community, in order to ensure that their rights were no longer compromised.
The First Two Respondents opposed the application, however, when given an opportunity to make representations to the court as to why a final order should not be granted, they failed to do so.
We quote/paraphrase from the judgment:
- The owners are interdicted from using the properties for any business purposes and specifically as a backpackers, until and unless the requisite authorisation has been obtained from the Relevant Authorities;
- The Sheriff is ordered to attend to the Properties to remove all furniture that caters for the backpackers and accommodation purposes to ensure continued compliance with the above;
- The City is ordered to attend to the properties to inspect same at random times and must then file its reports with this Honourable Court to advise the court whether the illegal activity at the properties has stopped;
- That all illegal structures, not in conformity with the building plans filed and approved by the City, are to be demolished at the cost of the owner of the properties concerned, within 14 days of the handing down of this court order.
This is a victory for property owners against neighbours that refuse to comply with the laws set out by municipalities in relation to properties. It shows that it is possible for persons to obtain judgments against their neighbours to stop them from refusing to comply with the law and in the process devaluing their neighbour’s properties.
Anyone with queries as to the above can contact Maike Gohl or Chantelle Gladwin-Wood for more information or assistance with cases relating to building disputes or neighbour law.
Written by Maike Gohl and Nicole Rens