South Africa: Zoning: Does 'Informal Housing' Constitute 'Dwelling Houses'?

Last Updated: 14 August 2017
Article by Smith Tabata Buchanan Boyes

Educated Risk Investments 165 (Pty) Ltd v Ekurhuleni Metropolitan Municipality (308/2015) [2016] ZASCA 67 (20 May 2016)

This matter deals with the clash of interests between a developer of a township and the local authority who used a neighbouring (undeveloped) township for informal settlements. The Supreme Court of Appeal was asked to determine whether the informal housing constituted 'dwelling houses' as was prescribed by the relevant zoning scheme. It was also asked to address the question whether the local authority was obliged to comply with all the conditions of approval of the township or the sub-divisional conditions before permitting people to live there. It is a necessary read for all involved in property development.

The Judgment can be viewed here.


Payneville Extension 3, on the outskirts of the town of Springs, is an informal settlement. It is roughly triangular in shape and bounded on two sides by a mine dump and a slimes dam and on the third by a railway line and major road. It has no potable water supply, no refuse removal, no sewage reticulation system, no electricity and no tarred roads. The slimes dam gives off radon gas, a source of radiation, at levels that exceed acceptable norms and pose a threat to the health of the residents. The area falls under the responsibility of the Ekurhuleni Metropolitan Municipality (Ekurhuleni).

In order to address the problem, Ekurhuleni proposed to allow some of the residents from Payneville Extension 3 to move temporarily to erven on a nearby township owned by it, Payneville Extension 1. The latter is an approved, but as yet undeveloped, township. Ekurhuleni had provided water and sewerage on the property but was not yet in a position to complete the development by providing roads, lighting and other facilities. Those who moved to Payneville Extension 1 would be permitted to erect informal housing on the erven allocated to them but this would be temporary until the upgrading of Payneville Extension 3.

As originally approved, Payneville Extension 1 consisted of 756 erven, mainly designated as 'Residential 1' in terms of the applicable town planning scheme. The zoning permits the erection of one dwelling house per erf. It also permits the sub-division of an erf provided that no portion created by such sub-division would be less than 40% of the prevailing size of the surrounding erven. In February 2012, a sub-division of a number of the erven in Payneville Extension 1 was approved to create an additional 363 erven.

These additional erven all also fell within the same zoning area and were thus zoned Residential 1.

In June 2011 Ekurhuleni commenced the construction of sewage and water reticulation services on Payneville Extension 1. It also erected toilets on a number of erven. Its intention, once this work was complete, was to permit a number of families from Payneville Extension 3 to move to Payneville Extension 1 and to erect informal dwellings on those erven where a toilet had been provided. (This would enable remedial work to be done on Payneville Extension 3 to which those residents could then return.) Furthermore, as funds became available from various sources, Ekurhuleni intended to undertake the further development of Payneville Extension 1 involving the surfacing of roads, electrification and the construction of basic houses. In the meantime though, the people who moved from Payneville Extension 3 would be living in better and healthier circumstances, until their return to Payneville Extension 3, or until they were allocated houses and elected to remain in Payneville Extension 1.

Educated Risk Investments 165 (Pty) Ltd (ERI) was the owner and developer of an adjacent township and complained that Ekurhuleni's envisaged plans were (i) in conflict with the Town Planning Scheme in that informal housing was not permitted in a Residential 1 Zone, where it was only permissible to erect (brick and mortar) dwelling houses; and (ii) that the further sub-division of the erven in Payneville Extension 1 was unlawful because it was not directed at complying with the Scheme, but was a device to circumvent it and to enable the establishment of an informal settlement on the property instead of a residential development. ERI argued that the effect of the sub-division was to rezone the property from Residential 1 to either temporary or special use in respect of which there was no public notice and nor was it preceded by a change of use application or proper process. The further sub-division was to enable the township to be used as an informal settlement in contravention of the scheme, was effected for an ulterior purpose and was hence unlawful; and (iii) that it would be unlawful for anyone to be permitted to occupy any part of Payneville Extension 1 until there had been compliance with all of the conditions attaching to the initial proclamation of the township and the approval of the further sub-division. These conditions related to the various matters that Ekhuruleni intended to leave until a later date as and when funding became available.

ERI alleged that it was losing its investment in the neighbouring township, as when purchasers noticed the ablution facilities being erected, they no longer wanted to purchase in the vicinity. ERI raised no objection to the development of a formal, fully serviced township with conventional brick and mortar houses on Payneville Extension 1. Their objection was to it becoming, albeit temporarily, an informal settlement lacking such services.

Various court skirmishes followed, but ultimately the application was dismissed by the Gauteng High Court. The present matter deals with the appeal thereto, the main issue being whether the proposed use of Payneville Extension 1 was inconsistent with its zoning under the Scheme. Ekurhuleni's stated intention was to rehouse families from Payneville Extension 3 to individual erven in Payneville Extension 1. ERI's complaint was confined to an objection that the informal housing that would be constructed, being informal in character, materials and design and intended to be temporary, would be impermissible in a Residential 1 zone as they did not constitute dwelling houses as contemplated in the scheme.



  • There may be difficulty in reconciling the formal nature and content of town planning schemes with the housing needs of so many South Africans. Town planning schemes are, generally speaking, directed at the medium to long-term development of an urban environment and rarely, if ever, make express provision to accommodate the incremental development of housing for the disadvantaged in our society as it becomes increasingly urbanised. Conventional town planning schemes, as in the present instance, by and large have no provisions specifically directed at this situation or the interplay between addressing these social issues and formal development of the urban environment.
  • A rigid interpretation of such schemes, viewing them through the prism of a developed society in which these problems are largely absent, is unsuited to South African circumstances.
  • Informal housing of the type Ekurhuleni intended to permit in Payneville Extension 1 consists of homes constructed of various materials, in particular wood, corrugated iron and fibreglass sheeting, that provide shelter to the occupants thereof.
  • Against this background, the definitions used in the zoning scheme must be evaluated.
    1. Clause 11.4 of the scheme defines a 'dwelling house' as 'a single, free-standing dwelling unit and can include a second dwelling unit.' In turn a 'dwelling unit' is defined as an 'interconnected suite of rooms which does not include more than one kitchen, designed for occupation and use by a single family and which may also include such outbuildings and servants quarters as are ordinarily incidental thereto.'
    2. According to the definition of 'dwelling house' in the Scheme it must be a free-standing unit. That implies a single building or structure and reinforces the notion, flowing from the words 'dwelling house', that residential premises such as maisonettes, flats or townhouse complexes may not be constructed in a Residential 1 use zone. The informal houses that Ekurhuleni contemplates, satisfy this criterion. They also satisfy the requirement for a dwelling unit that they will consist of 'an interconnected suite of rooms which does not include more than one kitchen, designed for occupation and use by a single family'.
  • Thus on the ordinary meaning of dwelling house, and on an application of the definitions in the zoning scheme, there is nothing that would preclude informal housing from being 'dwelling houses' as defined in the Scheme.
  • It was argued also that in referring to 'dwelling houses', the Scheme contemplated structures having a degree of permanence as opposed to informal housing. Whilst there was force in this contention - as the scheme is broadly directed at situations of medium to long-term development of urban areas rather than dealing with the massive housing problems that confront the poorest in our country - the fact was that the definitions used in the zoning scheme did not specify that the dwelling house had to be a permanent structure, a building or immovable.
  • Any doubt in this regard is dispelled by applying the constitutionally mandated rule of interpretation in section 39(2) of the Constitution. To disqualify from our understanding of dwelling houses the structures, sometimes sturdy and complex and sometimes rudimentary, in which a vast number of the poorest citizens of this country are compelled by their circumstances to live, is not in accordance with the spirit, purport and objects of the Bill of Rights.

This leg of ERI's claim therefore failed. Payneville Extension 1 is a township that has been divided into erven and zoned Residential 1 under the Scheme. It is therefore permissible in terms of the Scheme for a single temporary and rudimentary dwelling house to be erected on each erf in the township.

Non-fulfilment of conditions

  • ERI's further argument was that it would be unlawful for Ekurhuleni to permit people to occupy erven in Payneville Extension 1 until all the conditions attached to the original approval of the township and the further sub-division thereof had been fulfilled.
  • When Payneville Extension 1 was approved the approval was made subject to a number of conditions which included, amongst others, the requirement to construct and maintain the streets in the township until that task was taken over by the council and the latter required the township developer to fulfil the obligations in respect of the provision of water, electricity and sanitary services and the installation of systems therefore as agreed between it and the council.
  • In addition, when the further sub-division was undertaken a number of additional conditions were imposed, to which the approval was made subject. These related to the provision of various services, such as electricity and water; the provision of roads and steps for dealing with storm water runoff; and conditions dealing with dolomite risk management.
  • While Ekurhuleni had provided water reticulation and sewerage disposal in Payneville Extension 1, it had not formed or surfaced the roads and sidewalks, including taxi ranks, nor had it provided an electricity supply or street lighting. Its approach was to provide for these matters incrementally as and when finance became available. Ekurhuleni argued that those who moved to Payneville Extension 1 would at least be better off than if they stayed in Payneville Extension 3. ERI argued that this approach was impermissible as, before anyone could be permitted to take up residence in Payneville Extension 1, all of the conditions had to be fulfilled.
  • ERI's argument was incorrect as it conflated the obligations of Ekurhuleni when it develops the township of Payneville Extension 1 and disposes of lots in that township, and its present entitlement to use the property as it stands before such development takes place.
  • Although permission to lay out and develop a township on the property known as Payneville Extension 1 had been granted and the township had been declared to be an approved township, Ekurhuleni is not under any obligation to proceed with that development. It is perfectly entitled to allow the land to lie idle, or to change its intentions and propose a different development entirely, or to postpone development until the necessary funds are available. It is not in the meantime precluded from using the land, provided it does so in accordance with any applicable town planning scheme and the title conditions.
  • As matters thus stand, Payneville Extension 1 is a single property almost entirely zoned Residential 1, in respect of which there is an approved Surveyor-General's diagram showing its potential division into a number of erven. Under the zoning scheme, each of those erven may be used for a single dwelling house to be occupied by a single family. The present envisaged use is in conformity with the scheme. It is consistent with what will happen when the township is established, but it does not involve the taking of steps towards that establishment and the transfer in due course of the individual erven to purchasers.

Departure from the provisions in the zoning scheme

  • It was shown that ERI failed to show proof that Ekurhuleni acted unlawfully. However, even if in implementing the proposal there had been in some respect a departure from the provisions of the zoning scheme, it would not have been unlawful. The reason is that clause 32 of the zoning scheme expressly authorises the local authority to depart from it and to use any property in any use zone for a purpose empowered by law and which it deems beneficial to the community or the surrounding area.

The appeal accordingly failed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions