Johannesburg (29 May 2019) — The Kensington Residents and Ratepayers Association (KRRA) has secured a court order that compels the owners to demolish the unlawful structures of a backpackers hostel and authorises other action to ensure the hostel stops operating in an area that is not zoned for business.
The order was made in the Gauteng Local Division of the High Count of South Africa on 21 May. The order requires the owners of the property to demolish several illegal buildings on the stands, at the cost of the owners. This will need to take place within 14 days of the serving of the order by the City – probably in the second week in June.
After 15 years of objections, court battles and complaints, the evidence the KRRA gathered supported by Schindlers Attorneys was overwhelming, and the court granted the order against both the owners of the property and the CoJ.
The sheriff of the court has also been ordered to remove all furniture pertaining to the accommodation of backpackers, renting of rooms, business accommodation, hostel and any other business from the premises, which are spread across six stands in Empress and Doris Streets, Kensington. In addition, the sheriff of the court was also ordered to ensure that the illegal uses of the property are ceased and that the interdict is adhered to, as the City has failed to do so since at least 2005, despite numerous complaints lodged with the City.
“The KRRA has shown that home owners and residents have the power to force the City to act when it turns its back on its own laws and fails to safeguard the rights of citizens,” says Andre Grobler, chairperson of the KRRA.
“This is not an isolated instance and the problem is not confined to Kensington. In many residential areas of Johannesburg illegal businesses are springing up, infringing building and trading laws, causing a disturbance to residents living nearby and threatening the value of homes which families have often struggled to acquire.”
The KRRA has repeatedly assisted residents to report to the CoJ infringements of building and zoning legislation. It has a database of over 100 such complaints. The municipal authorities have failed to take decisive action to stop the businesses operating or demolish illegal structures. The KRRA approached the court as a last resort to protect residents’ rights.
“It is a ground-breaking win for Kensington residents as it is the first time the association has successfully appealed to the courts to force the CoJ to enforce the By-Laws. We hope to arrest urban decline in the neighbourhood and surrounding areas, said Andre Grobler, the Chairperson of the association.
Dispute over the Illegal backpackers
The hostel at the centre of the successful KRRA action is Diamond Diggers Backpackers (owned by a company called Joburg City Backpackers/ Joziview) which has been operating since at least 2005. Just in the last year, four new cottages were added without the requisite council approval. In its papers to the court, the KRRA pointed out that the establishment accommodated up to 43 long-term and short-term paying guests in addition to staff who reside on the premises.
The court papers gave details of numerous attempts by the KRRA and residents living close to Diamond Diggers Backpackers to secure enforcement of the law by municipal authorities and the police.
In December 2016, the City of Joburg inspected the hostel compound after a KRRA complaint and ordered the hostel to cease operating in contravention of zoning requirements. In February 2017, City officials reinvestigated and found that the owners of the property had defied the earlier notices issued by the City. In addition, further buildings were being constructed on the site without submission of building plans. This construction continued in the face of an additional council notice to cease building.
Residents take action
Residents of homes close to the backpacker compound have lodged numerous complaints with the local Metro police about unreasonable noise emanating from the premises. Four specific instances were cited in court papers (with their reference numbers), including one which resulted in charges of verbal assault and intimidation being laid against one of the property owners.
Other problems experienced by neighbours were the hostel’s dumping of building rubble in the service lane, its endangerment of neighbouring houses through its lack of fire prevention systems, and the unhygienic conditions caused by the regular overflow of refuse from the hostel’s bins. The owners also do not provide parking for their guests/tenants, which causes severe congestion.
“Given the authorities’ past inaction, the KRRA asked the court to monitor the situation to ensure that, this time, the illegal activity at this location is finally stopped. We are thrilled that the court order compels the City to continue inspecting the property at random times and file reports on compliance to the court,” says Kgomotso Modise, former chairperson of the KRRA and the applicant in the legal action.
Prof Leila Patel, a member of the KRRA Bylaw committee, points out that anarchy in respect of urban planning enforcement has implications far beyond the unpleasantness endured by residents who are directly affected.
“Kensington has become a wonderfully diverse suburb. It is a charming heritage neighbourhood with affordable entry-level homes and good public facilities – state schools of the highest standard, lovely parks and sports amenities. It is an area that helps advance the integration of the city, that contributes to the erasure of the apartheid legacy. We cannot allow something so valuable to be degraded and destroyed by bureaucratic inertia in enforcing sound planning principles,” she says.
Chairperson Andre Grobler says, “This is a significant victory for the residents of Kensington and our quest to hold the City government accountable to enforce its By-Laws and to ensure that private individuals comply with the law”. He paid tribute to the hard work of the KRRA By-Law committee who worked tirelessly to achieve this victory supported by Schindlers Attorneys who brought the action on behalf of the residents on a pro bono basis.
The KRRA will be disseminating news of the court ruling widely in the suburb and to other residents’ associations in Johannesburg facing similar challenges.