The case was reported as Van Rensburg and Another v Nelson Mandela Metropolitan Municipality and Others (2007 4 All SA 950 (SE)).
In summary: "The parties herein were, apart from the relevant local authorities, residential neighbours embroiled in a dispute about buildings on urban property. The applicants sought an order for the demolition of the offending buildings on the property and an interdict to prevent nuisance emanating from the property."
In essence, the defending party had constructed a guest house on the adjacent property to a complaining neighbour. Although they had received some building permission from the local authorities (after some of the property had been constructed), they had, in effect, built without getting the correct zoning or planning permission. It was obvious from the reported case that the defendant party was not acting in an altogether neighbourly way towards their neighbours.
The main point of the case was that despite having received local authority approval for some of the building work, the title deeds of the property did not allow for more than property to be erected or for the property to be used for business purposes.
The real effect of this decision is to show land owners that their neighbours cannot just do what they like with their property. For example, it seems to be prevalent that businesses of all types are being erected on residentially zoned properties where businesses are not allowed in terms of the title deeds and that additional homes/flats are being erected on sites that only allow for one residential property.
The reason for the court's decision was that the conditions in the title deed of a property takes precedence over any approval (or rezoning) given by a local authority and that any building or business that takes place in contravention of the title deeds condition is unlawful.
While this is only binding on the South Eastern Cape Local Division, it is likely that it will be used as precedence by many disgruntled land owners who have to suffer illegal construction and usage of neighbouring property.
Although the law allows for the disgruntled neighbour to be awarded substantial damages for nuisance and for reduction in the value of their property as a residential home, the law also allows for the court to demand that the property be demolished back to what is actually allowed in terms of the title deeds.
"With so many illegal businesses opening up it is difficult to give correct information to our clients. If we tell them that there is no business zoning on a property or in an area, they simply point out all the businesses that are openly trading in the area," said Mike Spencer of Platinum Global in Bloemfontein.
"It also has a marked effect on the value of legitimate business premises as people can buy illegal properties usually at much lower prices. The cherry on the top is that they then pay domestic rates and taxes, water and electricity etc. which can be as much as only 10% of these charges for legitimate sites. It hardly seems fair that local authorities do virtually nothing to close down these illegal businesses," he said.
For more information contact Mike Spencer on 051 447 4711 or send an email.
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