A zoning scheme (“zoning”) records all land use rights on properties in its area of jurisdiction. Zoning specifies the limitations and prohibitions regarding the manner in which a property may or may not be used. In addition, zoning may specify the sizes, bulk, and placement of buildings.

The primary purpose of zoning is to prevent new development from interfering with existing uses. Any breach of zoning is unlawful. Thus, zoning is passed in the interest of the owners who hold property in the jurisdiction where the zoning applies.

The applicable zoning is easily accessible as it if often found in the title deed to the property as a condition of title. You may also access the applicable zoning from your local municipality’s planning department.

The law has had a grey area as to whether an owner in a sectional title scheme has standing to enforce zoning in cases of breach by other owners. The Constitutional Court has now settled this question. An owner in a sectional title scheme has standing to institute proceedings in respect of breach of zoning on the common property. This means that the right does exist independently of the body corporate’s right to enforce compliance. The right need not be exercised for or on behalf of the body corporate.

The Constitutional Court has overturned the decision of the Supreme Court of Appeal (“SCA”). Wherein the SCA determined that the recourse an owner in a sectional title has in instances of breach is to call upon the body corporate to institute proceedings. It is only upon this failure by the body corporate that an owner may approach the court. Furthermore, the court is not approached in the owners personal capacity as an owner in the property. The court may only be approached by an owner for the purposes of appointing a curator ad litem for the body corporate.

The SCA held that such a conclusion accords with the common law. Where a wrong is done to a company, only the company (in this case the body corporate) and not the individual members of the company may take proceedings against the wrongdoers. The body corporate is little more that the aggregate of all the individual owners. Their good is their good. Their ill is their ill.

The SCA relied on provisions of the Sectional Titles Act 95 of 1986 (“the Act”) which allows unit owners in a sectional title scheme to enforce zoning. However, the proceedings must be on behalf of the body corporate. The relevant provisions of the Act provide that:

• When an owner is of the opinion that the body corporate has suffered damage or loss in respect of any damage to the common property;
• Such owner may serve written notice on the body corporate calling on the body corporate to institute proceedings within one month;
• Should the body corporate fail to institute proceedings, the owner may approach the court for the appointing of a curator ad litem for the body corporate. With the purposes of instituting and conducting proceedings on behalf of the body corporate.

The provisions of the Act provide that unit owners in a sectional title scheme may institute proceedings, but the proceedings may only be on behalf of the body corporate. The Act further provides that an owner may only institute proceedings if the body corporate has failed to do so. Even then, the standing is restricted to those owners who can show that they have experienced loss or damage similar to that of the body corporate.

The Constitutional Court in Spilhaus Property Holdings (Pty) Limited and Others v MTN and Another [2019] ZACC 16 (“Spilhaus”) ruled that the above provisions of the Act have no application when an owner seeks to enforce zoning. The right of an owner to enforce zoning arises as part of the broader class in whose interest the relevant zonings were passed. In other words, the right an owner seeks to enforce arises from being an owner of a property where the zoning applies. The zoning would still apply to the property regardless of the body corporate.

The Constitutional Court determined that an owner’s right to enforce compliance with zoning is a self-standing claim and has nothing to do with the provisions of the Act set out above. To require an owner in a sectional title to only institute proceedings for or on behalf of the body corporate would be at odds with constitutional principles. As it would create unequal protection and benefit of the law.

The court granted interdictory relief ordering the removal of the cell phone base station antennae (“the antennae”). The antennae traversed on the common property of the sectional title scheme. The antennae were erected with no approval or consent by the relevant municipality nor had the title deed conditions been amended.

Thus, an owner may enforce compliance when the breach of the zoning is on common property as the case was in Spilhaus. The owner may institute proceedings independent of the body corporate by reason of being an owner in the property.

The fact that the Act makes provision for the body corporate to sue does not preclude other affected persons form doing so. It is convenient to sue in the name of the body corporate, but an owner may have a direct and substantial interest in the breach. In that case, an owner may be a party to proceedings in their personal capacity.

Written by: Nolwazi Mathebula, Candidate Attorney

Reviewed by: Sifiso Msomi, Partner