Property owners beware: Municipalities nationwide targeting zoning contraventions

The legal framework: Zoning and municipal authority

At the heart of this trend are municipal land-use planning and zoning systems. Every municipality in the country operates under a land-use scheme or town planning by-law that dictates how land within its boundaries may lawfully be used.

These schemes categorise properties into use zones — typically residential, commercial, agricultural, and so on — and specify what activities are permitted in each zone. Land may not be used for any purposes other than those allowed by the scheme without prior municipal consent or rezoning.

Contraventions are considered unlawful and subject to enforcement measures, including fines or other penalties.

Zoning schemes are backed by municipal by-laws and provincial planning legislation that empower municipalities to enforce compliance, including through inspections, notices, and administrative actions. In some cases, non-compliance is even a criminal offence with potential fines or imprisonment on conviction, depending on the applicable by-law.

Importantly, rates payable on property in South Africa are governed by the Local Government: Municipal Property Rates Act 6 of 2004.

This statute allows municipalities to levy different rate tariffs based on property categories, which may include classifications tied to actual use or unauthorised use, in addition to standard categories like residential or business.

Historically, municipalities were expected to amend valuation rolls before charging different rates for different uses, but a key court decision changed that.

The Zibi judgment: A turning point

A 2021 Supreme Court of Appeal judgment in City of Johannesburg Metropolitan Municipality v Zibi confirmed that municipalities may impose higher penalty rates on properties used in ways that contravene their authorised zoning without first changing the property’s category on the valuation roll.

This was a significant legal clarification.

Previously, homeowners challenged such penalties on the basis that municipal valuation rolls had to be updated before differential rates could be applied.

The SCA rejected that requirement, reasoning that requiring publication of a supplementary valuation roll for every unlawful land use would impose an unreasonable administrative burden on municipalities.

The effect of the Zibi ruling is that municipalities today have clear legal authority to:

Review how a property is being used;
Determine whether that use falls outside what is permitted under its zoning scheme;
Impose penalty rates or higher tariffs when a property is being used unlawfully; and
Do so without waiting for formal rezoning or roll amendments.

This has emboldened municipalities to shift from sporadic, complaint-driven compliance checks to more systematic audits and enforcement drives.

What property uses are triggering scrutiny?

The focus of enforcement has grown beyond obvious commercial activities. Among the uses that have attracted municipal attention are:

Short-term letting such as Airbnb without consent;
Student accommodation or boarding facilities operating in residential zones;
Home-based businesses that exceed what is allowed as a “home occupation”;
Multiple or subdivided units on a property without consent; and
Additional dwellings or backyard rentals not approved under the existing zoning.

Many of these activities were historically tolerated or overlooked, especially where they seemed low impact. But with municipalities under financial strain and armed with strengthened enforcement authority, these uses are increasingly being treated as contraventions that attract financial penalties.

How homeowners can protect themselves

Given this environment, proactive steps are crucial:

Review your property zoning. Homeowners should obtain and check the municipal zoning certificate for their property and understand what uses are permitted. If the intended use exceeds what the zoning allows, consider applying for consent use or rezoning.
Respond promptly to notices. If a municipality issues a compliance notice, it’s important to respond within stipulated timeframes and engage constructively with the municipality rather than ignoring correspondence. Early engagement can prevent escalation into penalty rates or legal action.
Obtain legal and professional guidance. Consulting town-planning professionals or property attorneys early can clarify whether your current or planned use is lawful and what approvals are required. They can also help negotiate consent use applications.
Document approvals and permissions. Keep records of all municipal approvals, building plans, and correspondence. This documentation can be crucial if there is a dispute about permitted use.
Understand local bylaws and body corporate rules. If your property is in a sectional title scheme, body corporate conduct rules may impose stricter limitations than municipal zoning. Compliance with both is necessary.

Unsure about your property rights? Speak to someone who speaks property, fluently. Tonkin Clacey Mossel Bay Inc, T: 044 – 220 0240 or visit our offices at Nautilus Place, 27 Marsh Street, Mossel Bay.

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