By Chantelle Gladwin-Wood (Partner), Lauren Squier (Associate), MarcGevers (Candidate Attorney) and Jarrod van der Heever (CandidateAttorney)
COVID-19 has irrevocably changed and challenged the way that we do business in South Africa and the rest of the world. Businesses have been forced to operate from home where possible and, as a result, they are discovering the benefits that technology, lower transportation costs, and more personal freedom offer to the younger generation of employees. However, working from home is not always authorised in relation to the zoning of a property. There are restrictions on the uses that a property may lawfully be put to in terms of the applicable town planning scheme that may render working from home unlawful. There may also be restrictions that apply to the property if the property is in a sectional title scheme, by virtue of the provisions of the rules of the scheme.
In this article, we consider the land use management (a.k.a. town planning permissions) and restrictions that are common to most town planning schemes as well as restrictions that are contained in sectional title rules, and how the two interact.
Town Planning Schemes
Every municipal jurisdiction has its own town planning scheme and the clauses in such schemes differ slightly from one municipal district to the next.
In almost every town planning scheme applicable in every municipal jurisdiction, one will find a clause which permits the owner or occupier of a property to operate certain businesses from home, without needing to apply for consent from the Municipality to do so, and without the need to rezone the property.
Typically, this clause allows the owner, or occupants, to use no more than approximately 20-25% of the floor area of the house for business purposes. Further, such a clause would also typically restrict the types of businesses that could be conducted on the premises to those which are not noxious, do not pose a health or safety risk to neighbours, or do not require extensive parking requirements (e.g. doctors are required to have a parking bay for ambulances, and this is one of the reasons that it is not always possible for doctors to work from home). An example of such a clause can be found in the Consolidated Johannesburg Town Planning Scheme 2018, the relevant clause being:
If one is not permitted to work from home, or operate one’s business from home, by virtue of this clause, it will be necessary to determine whether the zoning of the property (a.k.a. the land use rights of the property) permits the business in question to be conducted from home.
The majority of residential properties fall into a zoning category that (apart from the general exemption referred to above) does not permit any business to be conducted from the property. As such, in most cases, one would be required to obtain either the written consent of the Municipality to conduct business from home (if the business is one which falls into the consent use column of the town planning or land use management scheme in question), or one would be required to rezone the property in order to lawfully operate business from same.
Consequences of Violating the Provisions of a Town Planning Scheme when Working from Home
In the event that business activities are conducted from the property without the relevant zoning or land use permission, the Municipality could serve the person in question with a notice requiring same to cease the unlawful activities at the property. If such a person fails to cease conducting their business from the property, the Municipality may serve a second notice advising them that a court order will be obtained if said person does not refrain from acting unlawfully.
Normally, if a person receives both notices and thereafter does not cease acting unlawfully, a Municipality would instruct attorneys to bring a court application to compel the person using the property unlawfully to stop doing so. This court order might require the eviction of persons living or working at the property, the removal of equipment that facilitates the unlawful business at the property, the demolition of a portion of the property, or any other order necessary to ensure that the unlawful activities do not continue at the property.
Another consequence that might follow the unlawful use of a property, in violation of the provisions of a town planning scheme, is the recategorisation of the property by the Municipality. The Municipality may recategorise the property on the Municipality’s general valuation roll, or a supplementary roll thereto, on the basis that (with the unlawful activity going on) it ought to be categorised as unauthorised use or illegal use in nature. These categories usually carry a rates charge of 350%-400% higher than what residential properties would normally carry, and, as a result, the property rates would increase by 350%-400%. This may negatively impact on the financial situation of the rates payer and that of their respective business.
The Municipality may also reclassify the nature of the services (electricity and water) being delivered to the property (such that the more expensive business tariffs for the provision of electricity, water, and refuse to the property may apply). Again, this is an undesirable consequence of working from home, where the use of the property is not in accordance with its permitted land use.
Is Working from Home During Lockdown a Criminal Offence?
While working from home in violation of the relevant zoning or land use permission can sometimes be classified as an offence, this violation becomes a little less straightforward as a result of the current lockdown.
When it comes to classifying a crime or an offence, there are certain requirements which need to be met. A key requirement for same is unlawful conduct (or actus reus). Unlawful conduct may be in the form of an act or an omission, which is voluntary and is unlawful. However, it is possible in certain circumstances to exclude the above elements through grounds of justification or defences.
Owing to the government regulation ordering the public to stay at home, barring certain exempting positions and roles, the fact that a person is now required to work from home (where possible and not in violation of the lockdown regulations) would not be unlawful, as the unlawfulness element would be excluded by the government-ordered lockdown and through the defence of necessity.
An individual who violates the relevant residential zoning laws may be seen to be protecting their own legally recognised interests including, inter alia, human dignity and freedom of trade, occupation and profession. Working from home should, however, not disproportionately infringe on a Municipality’s rights nor the rights of any of the residents of a sectional title scheme. There is no hard and fast rule to establish whether an infringement may be considered disproportionate, and is often explained as the interest protected should be of more value than the interest which is infringed, however, same could only be determined with reference to the circumstances and facts of a particular case (i.e. on a case by case basis).
Another defence potentially available to an individual who works from home and who violates the relevant zoning laws is Obedience to Orders.
The elements of this ground of justification are as follows:
- The order must emanate from a person lawfully placed in authority over the person who contravenes the relevant zoning laws;
- There must exist a duty to obey the order;
- The order must not be manifestly unlawful; and
- No more harm than is necessary must be done in carrying out the order.
President Ramaphosa is indeed placed in lawful authority over the whole population of South Africa. Abiding by the Lockdown Regulations issued in accordance with section 27(2) of the Disaster Management Act 57 of 2002 (“the Regulations”), specifically, that we should remain within our private residence is not unlawful. Furthermore, a person working from home and therefore abiding by the Regulations, will not in the ordinary course, be causing more harm than is necessary in carrying out the President’s order.
This ground of justification may be combatted with the argument that the President did not specifically order an individual to “work” from home but that he merely ordered the population to remain at home. However, the above defence coupled with necessity, in our opinion, may constitute valid grounds of justification to a contravention of the relevant residential zoning laws.
Restrictions on Property Use in Sectional Title Schemes
The management and/or conduct rules of many sectional title schemes contain rules to the effect that the owners of units therein may not utilise their sections to conduct business. The restriction contained in these rules may be as restrictive as, alternatively more, alternatively less, restrictive than the limitations on the owner’s rights of use that flow from the relevant town planning scheme.
In cases where the sectional title scheme’s rules are less restrictive than the town planning scheme, no dispute arises as the more onerous restriction in the town planning scheme will apply. However, it is not clear whether a restriction contained in the rules of a sectional title scheme that is more restrictive than that contained in the applicable town planning scheme would be lawful and enforceable.
The court considered this very issue in the case of Vanilla Street Home Owners Association v Ismail and Another. In this case, a sectional title owner was operating a hairdressing salon from her unit, and this violated the provisions of the rules of the sectional title scheme in question. However, her conduct was permitted in terms of the relevant town planning scheme. The trustees of the scheme approached the court for an order that the owner be prohibited from running the hairdressing salon from her unit, in accordance with the scheme’s rules. The owner argued that the scheme’s rules were unlawful inasmuch as they imposed a restriction on her, in relation to the use of her property, that was more onerous than the relevant town planning scheme. The court held in favour of the sectional title scheme and confirmed that, in our law, it is lawful for the rules of a sectional title scheme to impose more onerous limitations on the use of property than does the relevant town planning scheme.
Another court, on appeal, made a similar finding in the case of Bonthuys and Others v Scheepers. In this case, Scheepers (the Respondent) was also operating a hair salon from her unit, in contravention of the body corporate’s rules and section 44 of the Sectional Titles Act, and had constructed a separate entrance and installed a separate water meter for her business. The court first hearing the matter had focused heavily on Scheepers’ personal circumstances in ruling that she was permitted to convert the residential unit to business. However, on appeal, this was overturned and the court held that, due to the evidence of the other unit owners being adversely affected by Scheepers’ business, there was no valid justification for a departure from the scheme’s established rules.
Each case, however, must be decided on its own facts. There is no one-size-fits-all solution. It is possible that the restrictions imposed in the rules of a sectional title scheme “overstep the boundaries” and create restrictions on the use of the property that go beyond the relevant town planning scheme, but, are found by a court to be so onerous that they create an impermissible and unconstitutional limitation on the owners’ or occupants’ right of use and enjoyment of their property or the Constitutional rights to housing or property. No such case has come before our courts as of yet, but it is easy to imagine a situation in which such a case would (e.g. it is questionable whether a court would approve of a rule in a sectional title scheme prohibiting the use of generators in the scheme, as generators are becoming a necessity in the South African economic climate).
In such a case, where the scheme rules are more onerous than those prescribed by the relevant town planning scheme or national legislation, Paddocks Property Management, sectional title training specialists, warns schemes that these more onerous rules may not be upheld if referred to a higher body such as the Community Schemes Ombud Service (“CSOS”) or a court for adjudication.
How Trustees Ought to Handle a Breach of the Scheme Rules
Where the trustees of a sectional title scheme are of the view that a unit’s owner or occupier is breaching the rules of that scheme in working from home, they ought to send a notice notifying the owner or occupier of the breach and demanding that they cease the unlawful activity. If the owner or occupier continues to operate unlawfully, the trustees may (if the scheme rules specifically provide for it) issue a fine in respect of the non-compliance with the rules.
Alternatively, they might take a harsher approach and instruct attorneys to issue a court application to compel the owner or occupier to cease operating their business unlawfully at the property. In the event that the court grants the order in favour of the sectional title scheme, it is likely that the owner or occupier will be held liable for the legal costs incurred by the sectional title scheme in having to bring court proceedings in order to compel compliance with the rules. Importantly, if the scheme’s rules do not provide for fining an owner for the incorrect use of their unit for professional or business use, no fine may be imposed and the body corporate will then be required to approach attorneys to obtain a court order to bring about an end to the unlawful activity.
Although working from home can have many benefits, it might not be lawful and you are advised to seek advice from us to ensure that you do not impact your business operations negatively as a result of your potential violation of your home sectional title rules or town planning provisions.