Court orders BAC to close down hostels

FRANCISTOWN: Justice Lot Moroka has made an order directing the Botswana Accountancy College (BAC) to close down its hostels and evict its students from Tati River Plots.

In his judgment in a case that was lodged by the applicants, Garth Chitrin and Lesley Chitrin against BAC, Justice Moroka said it was unlawful for the latter to convert multi-residential properties into hostels without having not properly followed the law governing change of land use.

The defendant, BAC, had engaged Sichombo and Associates to apply for the change of land use from multi-family residential to student hostels, said Justice Moroka.

“On August 12, 2013, Sichombo lodged the application for change of land use with the Francistown City Council for Lots 38353, 38354, 38354, 38356, 38360, 38361, 38362, 38363 and 38364,” said Justice Moroka.

According to the judgment, the change of land use by the defendant and the plaintiffs and other neighbours formed the crux of the court case.

The plaintiffs and other neighbours were opposed to the change of land use from multi-family residential to student hostels.

“We know for a fact that Sichombo and Associates consulted the defendant’s neighbours and sought their views about the intended change of land use. We also know that the plaintiffs and other neighbours registered their objections to the proposed change of land use. They handed the forms to Sichombo and Associates. The fate of these forms remains a mystery for they never formed part of the application that was considered by the Francistown City Council. This comes out clearly in the evidence of the Principal Physical Planner (DW2) who testified on behalf of the defendant and in the evidence of Sichombo himself under cross-examination,” Justice Moroka clarified.

Explaining why the plaintiffs and their neighbours were opposed to the change of land use, Justice Moroka said: “Perhaps the most impactful evidence on what the opening of hostels has done to the neighbourhood is conveyed by the evidence of Ali Parekh. This is the previous owner of the plots now owned by both the plaintiffs and the defendant. He is the owner of Segmental Enterprises (Pty) Ltd, which owned all the plots at issue. He testified as the second plaintiffs’ witness.”

Parekh, Justice Moroka continued, told the court that he lives in the same neighbourhood with the plaintiffs and the students.

“He occupies Plot 9288 Tati River Plots. He owns five other plots in the same neighbourhood. His home shares a boundary wall with the defendant’s hostels. Like the plaintiffs, he said that he objected to the opening of the hostels by completing the neighbour consulting forms but he was never called to air his objection. He told the court that he became aware of the presence of students in the neighbourhood when they moved in. He says since the arrival of students in the neighbourhood, the life of his family has become a nightmare. He told the court that he has three teenage children, who inevitably interact with BAC students,” reads the judgment.

Parekh says as the hostels are on double storey buildings, students sitting on the upper floor look into his home thus interfering with his privacy, the judgement continued.

Parekh, Justice Moroka noted, stated that if the planning authority dealt with his objection, he would have known about this eventuality.

“Parekh said that he tried to sell his property and move out of the neighbourhood but there are no takers given the presence of the disruptive students. Parekh said he tried to sell some of the plots to a developer but once the developer came to know of the presence of the hostels in the vicinity, he (developer) pulled out of the deal. Parekh told the court that the defendant converted the properties into hostels without the consent of the neighbours.

He said he handed his objections to the building of the hostels to Sichombo and Associates. He said he was told that BAC teachers and not students would be accommodated on the property. He further said there are occasions when he made reports to the police about the nuisance. Police would come and linger around for one and half hours and then leave but the nuisance would restart. He said it is impossible for them to co-exist with the students,” Justice Moroka stated.

Justice Moroka continued: “As far as the plaintiffs are concerned, the nuisance happening in the student hostels has forced them to run away from their home. They now live in a rented house elsewhere in town. The plaintiffs say that the presence of students has visited actual harm to their rights to enjoy undisturbed stay in their home. The defendant is resisting the action and denies that the presence of the student hostels has created an unliveable environment for the plaintiffs’ family. The defendant also denies that the plaintiffs’ property has diminished in value as a result of the presence of student hostels on their doorstep. The plaintiffs also allege that the process taken by the defendant to convert the then family residences into student hostels was unlawful, an allegation which the defendant denies.”

Touching on the statement of issues to be considered before arriving at a just conclusion, Justice Moroka outlined them as follows: “(a) Whether the conversion of the defendant’s property into students’ hostel was lawfully done (b) whether the use of the defendant’s property constitute nuisance and is disruptive of normal family life for the plaintiffs and (c) Whether the plaintiffs’ have established the requirements for a permanent interdict.”

“In its plea, the defendant made a denial that the presence of student hostels in the neighbourhood has brought disruptions to the lives of the neighbouring residents. The defendant led evidence from three witnesses. Perhaps, a witness whose evidence comes close to speaking to the issue of nuisance is the first witness of the defendant, Badubi Badubi. He works as facility manager for the BAC and student hostels fall under his portfolio. Badubi told the court that a security guard is always deployed at the gate of the hostels to secure students and the premises. His evidence is that security guards working at the premises have never brought to his attention any concerns about disruptive student behaviour. Badubi’s evidence was characterised by denial of knowledge of the nuisance by students to their neighbours. The defendant did not lead evidence from any of the occupants of the hostels including the security guards who work there,” Justice Moroka underscored.

In conclusion, Justice Moroka said: “I am satisfied that the plaintiffs have made out a case that their use and enjoyment of their property has been infringed by the defendant in the conduct of its business, and that the infringement is continuous and repetitive. The plaintiffs have on a balance of probabilities shown that they cannot enjoy a peaceful environment where they can live and raise their children unhindered.”

Coming back to alternative remedies, counsel Shathani Majingo for the defendant submitted that the plaintiffs can report to the police about the nuisance, said Justice Moroka.

“The uncontroverted evidence of Parekh is that complaints to the police are being made and the police would come and linger around for one and half hour and then leave. The sheer enormity of the nuisance is beyond law enforcement. There is no remedy for this type of nuisance…There are no alternative remedies to the interdict sought. The plaintiffs have also on a balance of probabilities proven that there is no other satisfactory remedy available. The plaintiffs have thus made a case for a permanent interdict,” Justice Moroka stated.

Justice Moroka added: “The action succeeds and the following orders are issued: (a) An interdict restraining the defendant from conducting any business from its premises in a manner that constitutes a nuisance and/or disturbing the plaintiffs’ right to free and undisturbed use and occupation of their properties (b) An order restraining the defendant from causing or allowing to be caused from the premises of the defendant noise nuisance (c) An order declaring the use of its premises at Lots 38353–38356 and Lots 38360–38364, Francistown, held under Deed of Transfer No. FT 387/14 dated 23 rd April 2014 as students’ hostels to be unlawful (d) An Order directing the defendant to close down the hostels and evict all the students from plots 38356 and Lots 38360–38364, Francistown, held under Deed of Transfer No. FT 387/14 dated 23rd April 2014 and (e) Costs of suit awarded to the plaintiffs.”

The applicants were represented by attorney Nkululeko Fuzwayo.