Cabernet House

Vineyards Office Estate

99 Jip de Jager Drive
Bellville 7530
Tel. 084 - 955 1060
Fax 086 – 621 5474
planserv@icon.co.za

29 JULY 2010

The Chairman
TATIB
Via Email : jurgen@schirmacherdesign.com

FOR ATTENTION : MR. JURGEN SCHIRMACHER

ERF 6338 STELLENBOSCH

(c/o Marais Street & Jonkershoek Road Mosterdsdrift).
- LAND USE RIGHTS -

Sir

We refer to previous discussions, and herewith provide you with our professional
opinion in this regard.

1. STATUTORY BACKGROUND :

The applicable legislation which governs land use planning and land use rights in
the Western Cape, is the Land Use Planning Ordinance, No. 15 of 1985,
(“LUPO”).

Chapter II of LUPO deals with “Zoning Schemes”, “Zoning Maps”, “Scheme

Regulations”, “Use Rights” etc, and the legally prescribed procedures that must
be followed to effect any change s thereof.

In terms of the provisions of LUPO, the zoning and land use rights of a property
in Stellenbosch is determined by the Stellenbosch Zoning Scheme (July 1996)
and the Stellenbosch Zoning Map.
 Due to the crucially important nature of “zonings” and “use rights”, municipalities
issues “Zoning Certificates” for specified properties, rather than verbal
communications in this regard. Such a Zoning Certificate was issued on 03
August 2010, by Stellenbosch Municipality for Erf 6338 Stellenbosch. (See
attached copy of the Zoning Certificate)

The above-mentioned Zoning Certificate states that the zoning of Erf 6338 is
“Single Residential”. The word definition for “zoning” in LUPO (copied below),
clearly specifies that the zoning of a property determines the purpose for it may
be used.

"zoning", when used as a noun, means a category of directions setting out the
purpose for which land may be used and the land use restrictions applicable in
respect of the said category of directions, as determined by relevant scheme
regulations;

The Zoning Certificate for Erf 6338 also states two categories of land uses that
may be permitted within the “Single Residential” zoning :

• The “Normal Development” land use rights that may be permitted within
this zone is “Dwelling House” and “Hothouse”.

• The “Special Development” land use rights that may be permitted within
this zoning is “additional dwelling unit, Day-care centre limited to 15
children, Guesthouse, Breeding of dogs, Use of a minor portion of a
dwelling house for social, religious, or occupational purposes or for a
home enterprise, accommodation of additional persons”

The word definitions of “use rights” and “utilisation” in LUPO (copied below),
clearly specifies that the right to use or utilise land is subject to the zoning of the
land :

"utilisation", in relation to land, means the use of land for a purpose or the
improvement of land, and "utilise" has a corresponding meaning;

"use right", in relation to land, means the right to utilise that land in accordance
with the zoning thereof, including any departure;

LUPO also specifies the procedures that must be followed to change the zoning
of land (“rezone” land). The procedures includes a process of advertising and
public participation, and present any objector with the right to appeal any
decision by a Local Authority in this regard.

2. EXISTING SITUATION :

According to the Surveyor General Diagram for Erf 6338 Stellenbosch (copy
attached), the property is 4 959 m² in extent.
 A visual inspection of the property, as well as a scrutiny of available aerial
photography (Google image attached) indicates that Erf 6338 is currently planted
in its entirety with vineyards. According to press statements and website
information by Stellenbosch University / STIAS (the land owners), the property
was planted in 2008 with Pinotage grape vines for purposes of experimental
viticulture.

There is no evidence of any other land use or structures on the property, except
for the experimental viticulture.

The property owners in the vicinity of Erf 6338 are not aware of any
advertisement or procedure that was followed in terms of LUPO for either the
rezoning, or the granting of a departure from the land use restrictions applicable
to the Single Residential zone in terms of the scheme regulations.

3. LAND USE RIGHTS OPINION

The existing “experimental viticulture” on Erf 6338 Stellenbosch does not

conform to any of the “Normal Development” or “Special Development” land use
rights for the existing “Single Residential” zoning of the property. The existing
utilisation of Erf 6338 is therefore clearly in conflict with the zoning of the
property, and the land use rights in terms of the zoning scheme regulations.

In terms of Section 39(1) of LUPO (copied below), Stellenbosch Municipality is

obliged to comply and enforce compliance with the provisions of the zoning
scheme :

39 Compliance with provisions of zoning scheme and of conditions of

subdivision

(1) Every local authority shall comply and enforce compliance with-

(a) the provisions of this Ordinance or, in so far as they may apply in
terms of this Ordinance, the provisions of the Townships Ordinance, 1934
(Ordinance 33 of 1934);

(b) the provisions incorporated in a zoning scheme in terms of this

Ordinance, or

(c) conditions imposed in terms of this Ordinance or in terms of the

Townships Ordinance, 1934, and shall not do anything, the effect of
which is in conflict with the intention of this subsection.

In terms of Section 39(3) of LUPO (copied below), the Provincial Administration :

Western Cape (PA:WC) may instruct the municipality to enforce compliance with
the provisions of the zoning scheme :
 (3) If a local authority in the opinion of the Administrator fails to perform or to
exercise satisfactorily its duties or powers in terms of subsection (1), the
Administrator may, after notice to such local authority, withdraw any
approval or authorisation granted by the local authority, perform the said
duties, exercise the said powers and recover from such local authority
any amount spent by him in this connection or instruct the local authority
as to the steps to be taken by it in order to ensure compliance with
subsection (1), and such instruction shall in law override any decision of
the council of the said local authority.

Against the above-mentioned background, we are of the opinion that :

a) the municipality be formally approached to rectify the unlawful utilisation of

Erf 6338 for experimental viticulture / agriculture;

- failing which –

b) the Provincial Adminisration : Western Cape be approached to enforce

compliance of the provisions of the zoning scheme by the municipality;

- failing which –

c) legal action be taken against the land-owner, the municipality, and the
PA:WC to enforce the applicable provisions of LUPO in this regard.

We trust that you will find the above-mentioned opinion in order, and urge you not to
hesitate to contact us for any queries in this regard.

Yours sincerely

GERHARD ERASMUS
084 955 1060

_____________
GERHARD ERASMUS
B.SC Forestry, M.TRP