Nadia Burger

It’s very common to have guesthouses in between residential houses in suburbs, but what can you do when the guesthouse next door becomes a disturbance of your peace?

In the matter of Du Toit N.O. and Others v Coenoe 90 CC and Others[1] owners of properties resided opposite or close to a guesthouse. The owners complained and alleged that large trucks were a frequent occurrence at the guesthouse and construction took place regularly. A party was allegedly hosted at the guesthouse with more than 50 people in attendance and there was drinking, swearing and urinating in the street. The police was called to intervene and they arrived at 03:00 after which the noise and music quieted down. However, after the police left, the noise started up again and the music was turned back on. The police had to come back at 07:00. The street was strewn with empty beer and liquor bottles. The owners then proceeded to meet and discuss the situation at hand. Further, numerous taxis and vehicles with Lesotho number plates allegedly frequented the guesthouse. On one occasion, a big bus allegedly stopped in front of the guesthouse dropping off about 15 guests only to pick up the guests the following morning at 05:00, causing noise and disturbance at such an early hour. The list of allegations and complaints went on.

The owners approached the court for relief. The owners ascertained that the guesthouse was zoned by the municipality for single residential purposes. In terms of the Town Planning Scheme stipulations, a dwelling house and dwelling unit are defined as “a self-contained interleading set of rooms used only for the living accommodation and housing of a single family together with such outbuildings as are ordinary used therewith”. The use of a property for purposes as a guesthouse would thus fall outside the above definition and would therefore be illegal.

The Guesthouse however alleged that they have applied for permission to operate the guesthouse and that they have been granted “special permission” from the Local Authority to operate the guesthouse pending final approval from the Local Authority. They apparently had a letter to this effect, but the letter could not be found to prove that they had the necessary permission.

The court said that even if it is accepted that the guesthouse had permission to operate pending the outcome of the application by the guesthouse, such informal authority cannot be the authority by the guesthouse as envisaged by the relevant ordinances and regulations in this regard. After the proper procedure had been followed, and in particular after proper notices have been given to the property owners in the vicinity of the guesthouse, and notices in the local Newspaper, only then after proper consideration, may consent be granted for the special use as a guesthouse. Up until that stage the guesthouse on the property is being run illegally.

The court subsequently interdicted the guesthouse from using the dwelling / guesthouse for any other purpose than “dwelling house / unit and / or in conflict with the single residential zoning”.

Should you ever find yourself in a situation similar to the above, start by approaching the Local Municipality and try to ascertain if the guesthouse has the necessary permission and zoning to operate as such or contact us to assist.

[1]  (1584/2017) [2017] ZAFSHC 126

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.