IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU, GEORGE)

Case no: 22330/2024

In the matter between:

ANDRIES JOHAN VAN TONDER Applicant

and

THE GEORGE MUNICIPALITY First Respondent

THE BODY CORPORATE, WILDERNESS MILKWOOD
SECTIONAL TITLE SCHEME (SS363/2002) Second Respondent


JUDGMENT DELIVERED ELECTRONICALLY ON 20 AUGUST 2025

MANGCU-LOCKWOOD, J

A. INTRODUCTION

[1] The applicant , a member of the second respondent ( “the Scheme”), seeks
declaratory orders against the first respondent (“the Municipality”), as follows:

1.1 That it be declared that the letting of dwelling units in the [Scheme]
…zoned “General Residential Zone II” with primary use right of “Group Housing”,
by …members of the second respondent, for short term occupation by paying
guests or tenants other than to one family as living accommodation and housing
of such family, is in contravention of Schedule 1 of the George Integrated Zoning
Scheme By -law (2023) (and its predecessors the Wilderness Town Planning
Scheme Regulations 1984 (revised 1998) and th e George Integrated Zoning
Scheme By-law (2017), and is unlawful;

1.2 That it be declared that the use of a dwelling unit in the [Scheme] only
allows for it being used as living accommodation and housing of one family (as
defined in the 2023 By -law) and which means that the dwelling unit shall only be
rented out or be leased to such a family for use as their regular and chosen place
of abode, for whatever period of time.

[2] The application is opposed by both respondents, who have raised points in
limine. Both respondents argue that this Court should refuse to exercise its discretion to
grant the declaratory relief , and state that the relief sought is overbroad and vague. In
addition, the Municipality raises , firstly, non-joinder of the individual owners of the
Scheme, and secondly , states that the essence of the matter should rather been
referred to the Community Schemes Ombud in terms of the Community Schemes
Ombud Service Act 9 of 2021 (“CSOS Act”).

[3] There is also a condonation application b rought by the Scheme for the late filing
of its answer ing affidavit, which was two-and-a-half months out of time . The affidavit
sets out the reasons for lateness , which include the fact that the dies non commenced
during the festive season of 2024, and that in January 2025 th e applicant was
requested, by means of a notice in terms of uniform rule 35 (12), to produce a legal
opinion that he relie d upon, and it was when he failed to respond to the notice that the

opinion that he relie d upon, and it was when he failed to respond to the notice that the
answering affidavit was finalized . The cond onation application is n ot opposed . All the
parties have now filed all the affidavits they w ish to, and accordingly there is no

prejudice caused to any party . Finally, all the parties agree that this is a matter raising
matters of public importance . For all these reasons, I consider it in the interests of
justice to condone the late filing of the answering affidavit.

B. RELEVANT BACKGROUND

[4] The applicant is the registered owner of a unit in the Scheme , and it falls within
the area of the Municipality. In terms of the George Integrated Zoning Scheme By -law
(2023)1 (“the By-Law”) the property of the Scheme is zoned under General Residential
Zone II (“GRZ II”) and has a primary use right of “Group Housing”.

[5] The units in the Scheme - 26 in total - are “ dwelling units”, a term which is
defined2 in the By-Law. While some units are occupied permanently by their owners or
indefinitely by long -term tenants, some are not used as primary residence, but as
holiday homes.

[6] Of the units that are not used as primary residence, the majority are used by their
owners exclusively. However, a minority of owners - 4 in total - rent out their units to
short-term guests through websites such as airbnb.com or lekkeslaap.co.za, when they

1 The By-Law was adopted by the Municipality’s Council in terms of Section 12 of the Local Government
Municipal Systems Act, 2000 (Act 32 of 2000) on 28 September 2023 and promulgated in terms of
Section 13 of said Act on 6 October 2023 by virtue of P .N 883 1/2023. An amendment was promulgated
on 8 August 2024 by adding a section 3 to Sch 3: “Special Area Overlay Zone for Uniondale Business
Area” but remained known and referred to as “George Integrated Zoning Scheme By-law (2023)”.
2 A “dwelling unit” is defined as follows:
“…a self -contained, inter -leading group of rooms with a uniform architectural style approved by the
Municipality used for the living accommodation and housing of one family , together with such
outbuildings as are ordinarily used with such a dwelling unit —
(a) with not more than one kitchen;

(a) with not more than one kitchen;
(b) provided that a maximum of two habitable rooms which are not inter -leading with the main
dwelling unit and do not include a kitchen, are permissible and an outbuilding is not an
interleading room;
(c) does not include tourist accommodation or accommodation used as part of a hotel; and
(d) including the conducting of an office based work -related activity of a professional, clerical, or
administrative nature by an employee of a company from their place of residence, which excludes
a home occupation, and does not result in additional trip generation.” (my emphasis)

themselves are not in residence. According to the papers, t hese owners agree to short-
term rentals to one “family”3 or household at a time.

[7] At a special general meeting (“SGM”) held o n 27 September 2023 , the Scheme
resolved by a majority of 75% to adopt rules in terms of section 10 of the Sectional Title
Schemes Management Act 2011 (“the Rules”). In terms thereof, there is no limitation on
an owner’s use of a dwelling unit as short -term accommodation. The applicant was a
trustee of the Scheme at the time of the SGM of 27 September 2023.

[8] The applicant states, firstly, that the letting of the dwelling units as short -term
rental accommodation “results in a serious infringement of the lifestyle of permanent
residents of the Scheme that is being sought and promoted, by living within an area
zoned Residential II, with primary use rights as “group housing””.

[9] He states further that the short -term letting of dwelling units in the Scheme to
guests other than “family” contravenes the By-Law, as well as its predecessors, namely
the Wilderness Town Planning Scheme Regulations, 1984 (“the Wilderness
Regulations”), as well as the George Municipality Integrated Zoning Scheme By-Law,
2017 (“the 2017 By -Law”). He bases t his argument on an interpretation of all three
instruments although, primarily on the 2023 By-Law.

[10] The applicant refers to differing interpretations of the By-Law between him, the
Municipality and the Scheme. The Municipality’s view is that the zoning of the land and
the use rights afforded in terms thereof allow for the short -term letting on condition that
it is to a “family”, as defined in the By -Law. It states that t here is no limitation on the
duration in respect of which an owner of a dwelling unit as primary use under General
Residential Zones II may rent out the entire dwelling unit to a family. Further, that there
is no ambiguity or absurdity arising from the express provisions of the By-Law.

is no ambiguity or absurdity arising from the express provisions of the By-Law.

3 A “family” is defined as follows in the By-Law:
“(a) one or more individuals occupying a dwelling who are related through marriage or common law,
blood relationship, legal adoption, or legal guardianship and no more than 3 unrelated people; or
(b) a group of not more than 5 unrelated persons, including dom estic workers or boarders but
excluding the exclusive use thereof by students attending a place of instruction.”

[11] The Municipality’s interpretation has been conveyed to the applicant since, at
least April 2023, as indicated by emails from various officials of t he Municipality which
are attached to his founding affidavit dated 13 April 2023, 24 April 2023 and 10 August
2023. In all that correspondence the Municipality’s officials added that the final decision
in respect of the rental of dwelling units rested with the Scheme.

[12] As for the Scheme , it s view is encapsulated in the Rules adopted on 27
September 2023, which place no limitation on an owner ’s use of a unit as short -term
accommodation. The applicant does not seek any ancillary relief against the Scheme,
its members or the Municipality. I t is accordingly evident that the issue arising for
determination is purely a question of law, involving interpretation of the By -Law. The
question that arises is whether this Court should exercise its discretion in favour of
granting the declarators sought.

C. THE LAW ON DECLARATORY REMEDIES

[13] In terms of section 21(1)(c) of the Superior Courts Act 10 of 2013, this Court has
the power in its discretion, and at the instance of any interested person, to enquire into
and determine any existing, future or contingent right or obligation, notwithstanding that
such person cannot claim any relief consequential upon the determination.

[14] In Cordiant Trading 4, the following was stated of s 19(1)(a)(iii) of the Supreme
Court Act 59 of 1959, the predecessor to s 21(1)(a):

“‘Although the existence of a dispute between the parties is not a prerequisite for the
exercise of the power conferred upon the High Court by the subsection, at least there
must be interested parties on whom the declaratory order would be binding. The
applicant in a case such as the present must satisfy the court that he/she is a person

4 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd [ 2005] ZASCA 50; [2006] 1 All SA
103 (SCA); 2005 (6) SA 205 (SCA) para 16.

interested in an “existing, future or contingent right or obligation” … In Durban Cit y
Council v Association of Building Societies 1942 AD 27 Watermeyer JA with reference
to a section worded in identical terms said at 32:

“The question whether or not an order should be made under this section has to be
examined in two stages. First the c ourt must be satisfied that the applicant is a person
interested in an ‘existing, future or contingent right or obligation’, and then, if satisfied on
that point, the Court must decide whether the case is a proper one for the exercise of
the discretion conferred on it.”.’

[15] The last -quoted portion does not mean that, once an ‘existing, future or
contingent right or obligation’ is established, a court is bound to grant a declarator, but
that it must consider and decide whether it should refuse or grant the o rder, following an
examination of all relevant factors.5

[16] As regards the discretion to be exercised, the following was stated by the SCA in
West Coast Rock Lobster6:

“What was required was that there should be interested parties upon whom the
declaratory order would be binding. In considering whether to grant a declaratory order
a court exercises a discretion with due regard to the circumstances. The court must be
satisfied that the applicant has an interest in an existing, future or contingent right or
obligation. If the court is so satisfied it must consider whether or not the order should be
granted. In exercising its discretion the court may decline to deal with the matter where
there is no actual dispute. The court may decline to grant a de claratory order if it
regards the question raised before it as hypothetical, abstract or academic. Where a
court of first instance has declined to make a declaratory order and it is held on appeal
that that decision is wrong the matter will usually be remitted to the lower court.”


5 Cordiant, para 17.

5 Cordiant, para 17.
6 West Coast Rock Lobster Association and Others v Minister of Environmental Affairs and Tourism and
Others [2010] ZASCA 114; [2011] 1 All SA 487 (SCA) para 45.

[17] Thus, whilst it is correct that the absence of an existing dispute is not an absolute
bar to the grant of a declaratory order, a court may , in the exercise of its discretion,
decline to decline to deal with the matter where there is no actual dispute.7

[18] One such instance is if it regards the question raised before it as hypothetical,
abstract or academic. 8 It is not ordinarily desirable for a court to give rulings in the
abstract on issues which are not the subject of cont roversy and are only of academic
interest.9 The Constitutional Court stated as follows in Ferreira10:

“The objection to constitutional challenges brought by persons who have only a
hypothetical or academic interest in the outcome of the litigation is referred to in Zantsi v
Council of State, Ciskei and Others . The principal reasons for this objection are that in
an adversarial system decisions are best made when there is a genuine dispute in
which each party has an interest to protect. There is moreover the need to conserve
scarce judicial resources and to apply them to real and not hypothetical disputes. The
United States courts also have regard to "the proper role of the Courts in a democratic
society" which is to settle concrete disp utes, and to the need to prevent courts from
being drawn into unnecessary conflict with coordinate branches of government.”

[19] A declaratory order cannot affect the rights of persons who are not parties to the
proceedings.11 The SCA stated as follows in Clear Enterprises12:

“Not all of the cases pending before the High Court involve the same parties. To the
extent that they concern different parties any declaratory order that issues can hardly be
binding on those other parties. Moreover, each of the pending applications involves

7 Ex parte Nell 1963 (1) SA 754 (A) at 760B. See West Coast Rock Lobster para 45.
8 Ibid.
9 Zantsi v Council of State, Ciskei and Others (CCT24/94) [1995] ZACC 9; 1995 (4) SA 615 (CC); 1995

(10) BCLR 1424 (CC) (22 September 1995) para 7.
10 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995]
ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995) para 164.
11 See SA Mutual Life Assurance Society v Durban City Council 1948 (1) SA 1 (N) and Farlam et al op
cit at A1-33 to A1-34.
12 Clear Enterprises (Pty) Ltd v Commissioner for South African Revenue Services and Others [2011]
ZASCA 164 (SCA) paras 16-19.

different vehicles. The fallacy in the approach of the parties is that they assume,
erroneously so, that what confronts us is a discrete point of statutory construction. It is
not. It is first an d foremost a fact -based enquiry. Any interpretive exercise to be
undertaken will be inextricably linked to the facts. And, it is trite that every case has to
be decided on its own facts. That is particularly the case where, as here, the one party
contends that the facts advanced by the other are a “sham”, “fictional” and a “stratagem”
to circumvent the applicable legislation. It follows that efforts to compare or equate the
facts of one case to those of another are unlikely to be of assistance. For, as we w ell
know, parties frequently endeavour to distinguish their case on the facts from those
reported decisions adverse to their cause. Moreover, absent an undisputed factual
substratum, it would be extremely difficult to define the limits of the declaratory r elief
that should issue.”

D. DISCUSSION

[20] In exercising the Court's discretion , I take into account firstly, the fact that the
applicant’s case is purely abstract. Although he makes allegations of “serious
infringement to his lifestyle”, no detail whatsoever is provided in this regard. There is no
suggestion, for example that the short-term letting complained about results in changes
to the nature of the occupancy or the buildings, or contravention of the Scheme’s Rules.

[21] Furthermore, the allegations made in support of the alleged infringement are not
supported by the evidence. The applicant alleged that it was the lifestyle of permanent
residents of the Scheme that was seriously infringed, and not only his. He also intimated
that there are differing views on the issue amongst owners in the Scheme . However,
that is not the case. It transpire s from the Scheme’s answering affidavit that, upon
receipt of this application, its members’ views were canvassed, and with the exception

receipt of this application, its members’ views were canvassed, and with the exception
of the applicant, none of them associate themselves with this application. In other
words, contrary to the indication given in the founding affidavit, the applicant is the only
member of the Scheme who holds the view espoused in these proceedings.

[22] Moreover, as was the case in Voluntary Sterilization 13 there is no decision of the
Scheme that has been challenged by the applicant. He does not seek to address any
acts taken by the Scheme that have been implemented in relation to the interpretation
issue that he has brought to this Court, specifically the adoption of the Rules adopted on
17 September 2023 at the SGM. Although the case law14 makes clear that this does not
always have to be the case, it is nevertheless a factor that the Court is entitled to take
into account, especially when regard is had to the other circumstances discussed in this
section.

[23] As between the applicant and the Scheme, the differing interpretations between
them crystallized into the Rules adopted on 27 September 2023. And so, properly
construed and in essence, the rights he seeks to vindicate relate to the decision made
at the SGM on 27 September 2023. It is in that context that the Municipality’s
preliminary point regarding the remed y available in terms of the CSOS Act is to be
viewed. Whilst it is correct that the remedy as framed in these proceedings is not
available at the CSOS, it is also correct that in terms of s 39(4)(c) and (e) of that Act, the
following remedy is available to the applicant:

“(c) an order declaring that a resolution purportedly passed at a meeting of the
executive committee, or at a general meeting of the association-
(i) was void; or
(ii) is invalid;
…
(e) an order declaring that a particular resolution passed at a meeting is void on the
ground that it unreasonably interferes with the rights of an individual owner or occupier
or the rights of a group of owners or occupiers.”


13 Association for Voluntary Sterilization of South Africa v Standard Trust Limited and Others (325/2022)
[2023] ZASCA 87 (7 June 2023) para 9.
14 Ex parte Nell 1963 (1) SA 754 (A) at 760B. See West Coast Rock Lobster para 45.

[24] The applicant does not claim that that remedy is not available. He states that he
has purposively opted to first pursue the relief he seeks here, and to thereafter , if
necessary, address the SGM's resolution at an appropriate forum.

[25] This, in my view, calls to mind what was stated in Ferreira15, regarding the need
to conserve scarce judicial resources and to apply them to real and not hypothetical
disputes. As the Municipality states, it is evident that the applicant has devised a way to
fit himself within the jurisdiction of this Court, by see king the relief that he seeks . He
does so mindful that he lacks the support of the members of the Scheme.

[26] One concerning feature regarding the relief sought by the applicant relates to its
nature and extent. It is common cause that, although the relief is framed to target the
owners in the Scheme, it will impact every single owner of a dwelling unit within the
jurisdiction of the Municipality. This is the stated reason for the Municipality’s decision to
oppose this application instead of abiding the decision of the Court , which would be the
norm in matters between body corporates and their individual members.

[27] The Municipality states that the relief w ill have an impact on the economic and
tourism benefit of all taxpayers within its jurisdictional area . This is confirmed by the
Scheme which points out that the impact of restricting the primary use to the applicant’s
interpretation would diminish their memb ers’ property values and have an impact on
tourism. It is not unreasonable to conclude that the relief would similarly affect other
group housing schemes and other owners of dwelling units within the Municipality’s
jurisdictional area.

[28] The magnitude of this impact is consonant with the objective of a zoning scheme,
which is the coordinated and harmonious use and development of land. 16 As the
Constitutional Court stated in Walele17:

15 Ferreira para 164.

Constitutional Court stated in Walele17:

15 Ferreira para 164.
16 See Lind and Another v Trustees for the of the time being of The Indigo Trust (T3685/96) (10072/2020;
6800/2021) [2021] ZAWCHC 97 (18 May 2021) para 28 and the cases cited therein.
17 Walele v City of Cape Town and Others [2008] ZACC 11; 2008 (6) SA 129 (CC) para 130.

“…zoning schemes also confer rights on owners, because owners are entitled to require
that neighbouring owners comply with the applicable zoning scheme. Where an owner
seeks to depart from the scheme, the rights of neighbouring owners are affected and
they are entitled to be heard on the departure. Owners in the area are also entitled to be
heard when land is rezoned. A zoning scheme is therefore a regulated system of give
and take: it both limits the rights of ownership but also confers rights on owners to
expect compliance by neighbours with the terms of the mutually applicable scheme. The
result is that where an owner seeks to use his property within the terms of the zoning
scheme, it cannot be said that the rights of surrounding owners are affected materially
or adversely.”

[29] Here, the applicant acts only in his interest. Whilst on the one hand he has made
out no case for the alleged infringement he claims to have incurred, there i s to consider,
on the other hand, the impact on the rest of the population within the Municipality’s
jurisdiction. If granted, the relief will have an impact on the rights of property ownership
and freedom to contract of those who own dwelling units within the Municipality’s area
of jurisdiction. It will curtail the use of their private property, without them being afforded
an opportu nity to be heard, and without following the normal process of enacting
legislation. To use the language of the SCA in West Coast Rock Lobster , the relief
would effectively “bind persons who are strangers to the present dispute’ 18. It can also
not be ignored that there is a high likelihood of those persons being aggrieved19, a point
which is made by the Municipality.

[30] One must also accept that a policy decision was taken by the Municipality , and
that is what is reflected in the provisions of the By-Law. That is in accordance with the
Constitutionally enshrined powers of a municipality to make and administer by -laws for

Constitutionally enshrined powers of a municipality to make and administer by -laws for

18 West Coast Rock Lobster Association and Others v Minister of Environmental Affairs and Tourism and
Others (532/09) [2010] ZASCA 114; [2011] 1 All SA 487 (SCA) (22 September 2010) para 51.
19 See SA Mutual Life Assurance Society v Durban City Council 1948 (1) SA 1 (N) and Farlam et al op
cit at A1-33 to A1-34.

the effective administration of matters, in terms of s 156(2), read with s 151(2)20.
Whether the Municipality permits the short-term letting of a “dwelling unit” for primary
use, and whether it decides to further confine the use of a “dwelling unit” to occupation
by one family as a regular place of abode , are matters of public policy which fall within
the executive and legislative powers of the Municipality.

[31] Seen in that light, the relief sought amounts to effective amendment of the By-
Law, or, at the very least, it will oblige the Municipality to apply the By-Law in a manner
which it has not done and which it does not wish to do. That this is so , is confirmed by
the correspondence attached to the founding affidavit from the various employees of the
Municipality, who each confirmed the Municipality’s interpretation. This does not mean
that the applicant is precluded from challenging the Municipality’s interpretation.
However, the manner in which the matter has reached the Court has the effect of
sidestepping the usual process es of enacting legislation , to the detriment of the rest of
the population within the Municipality’s jurisdiction.

[32] And e ven though the relief as framed goes to the heart of th e Municipality’s
policy decision and interpretation, the applicant has also not challenged any decision of
the Municipality as being unlawful or anything of the sort, including its policy decision as
reflected in its interpretation of the By-Law, or implementation thereof.

[33] Moreover, as the respondents point out, the relief sought is vague in that there is
no attempt to define what is considered to be “short-term” occupation. In this respect ,
the effect of the order would be to define “short-term” occupation in accordance with the
applicant’s belief , without the input of other residents within the Municipality’s
jurisdiction. That is another indication that the effect of the order sought will be an

jurisdiction. That is another indication that the effect of the order sought will be an
intrusion by this Court into the legislative powers of the Municipality, contrary to principle
of separation of powers.


20 Section 151(2) of the Constitution vests the executive and legislative authority of a municipality in its
Municipal Council.

[34] In light of the considerations above, I consider it inequitable to grant the
declarator sought by the applicant , which affects the whole of the Municipality’s
jurisdiction. More so given that, firstly, the matter has come to this Court as a matter
directed solely at the conduct of the Scheme, though there is no live dispute raised .
Secondly, the facts of this case concern one individual’s unhappiness with the decision
of the Scheme, in circumstances where he has alternative remedy available as already
discussed, and the nature of the relationship between them is contractual, governed as
it is by the Scheme’s constitution and rules . Thirdly, in the absence of a live dispute
between the parties, it is clear that the applicant seeks, in essence, an opinion from this
Court. As the Constitutional Court stated in Ferreira, “the proper role of the Courts in a
democratic society is to settle concrete disputes” 21. It is simply not in the interests of
justice, nor the interests of the proper administration of justice, for the relief to be
granted.

[35] For all the above reasons, I am of the view that it would be inappropriate to grant
the declaratory relief sought, and the application is accordingly dismissed. There is no
reason why costs should not follow the result.

E. ORDER

[36] In the circumstances, the following order is made:

1. The application is dismissed.
2. The applicant shall pay the costs of the first and second respondent , including
costs of counsel, at Scale B.


_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court

21 Ferreira para [164].

Appearances:

For the applicant : Adv D.L. van der Merwe
Instructed by : Ewald Burger Attorneys

For the first respondent : Adv A.F. Schmidt
Instructed by : Boshoff Incorporated

For the second respondent : Adv U.K. Naidoo
Instructed by : Arleen Vosloo Attorneys