You can't sue on outdated laws, court rules in estate short-term rental fight

The Polokwane High Court’s dismissal of a dispute within the Zandspruit Bush and Aero Estate in Limpopo over short-term rentals has made one thing clear: if the law has changed, the courts won’t enforce yesterday’s rules.

Legal expert Johlene Wasserman, Director of Community Schemes and Compliance at VDM Incorporated, explains that the landmark ruling issued last year centred on repealed planning schemes — specifically the Maruleng Land-Use Scheme of 2008, which was replaced by the updated 2021 scheme.

The case arose from a dispute in the Zandspruit Estate near Hoedspruit, where two homeowners challenged the estate’s homeowners’ association (HOA) after it amended its rules in December 2018 to allow limited short-term rentals. They argued that rentals shorter than one month broke the 2008 scheme, and they subsequently tried to reinstate a blanket ban.

By the time the matter reached court, however, the legal framework had already shifted. “The 2008 scheme had been repealed and replaced by the 2021 scheme, which expressly allows short-term rentals,” Wasserman explained.

An Acting Judge hearing the matter confirmed that this change was binding and that any ruling based on the repealed 2008 scheme would have no practical effect. “The Court stressed that it does not exist to decide abstract or outdated disputes. It also pointed out that conflicts of this nature fall within the jurisdiction of the Community Schemes Ombud Service (CSOS), which is better suited to handle internal rule changes and neighbour-to-neighbour disagreements,” Wasserman said.

The application was dismissed, and the Zandspruit Estate HOA’s rule permitting short-term rentals remains valid. The homeowners were, meanwhile, slapped with the legal costs.

"This ruling makes it clear to estate residents, trustees, and practitioners that timing and context matter. Legal challenges must be grounded in current law, not repealed frameworks. Courts will not intervene where disputes have become moot due to legislative change".

Wasserman added that for HOAs, the decision offers reassurance that rule changes will not be overturned years later under outdated planning schemes. For homeowners, it’s a reminder that litigation must be carefully framed, timely, and strategically sound.

This principle was echoed in a second judgment delivered last year, of Olifantsfontein Residential Apartments (Pty) Ltd v City of Johannesburg. “Here, the Gauteng High Court ruled that municipalities must apply tariff policies exactly as written, without adding conditions that don’t exist".

The Court found that the City had unlawfully added a requirement — that only government-subsidised dwellings could qualify — to the sewerage tariff subsidy. "It contradicted the plain wording of the budget and amounted to an unlawful administrative decision under the Promotion of Administrative Justice Act,” Wasserman said.

The City in that case had changed how it applied the tariff without going through the proper public process or formally updating the budget. “Because of that, the Court ruled in favour of the property owner and confirmed that their building qualifies for the lower, subsidised rate".

Wasserman pointed out that these judgments send a clear message – that the courts won’t uphold old rules or accept unlawful changes to current ones. “Whether it is the estate rules or municipal charges, the law must be applied exactly as it stands today,” she explained.

zelda.venter@inl.co.za