18 April 2018 by Dispute Resolution Alert

Public roads in a private estate: Who makes the rules?

With one out of every ten South Africans residing in a private estate, or gated community as they have become known colloquially, it is worthwhile to spend some time familiarising oneself with the legality of the management association’s rules and regulations. While the relationship between the management associations and the residents is based in contract, the contents of such a contract is subject to the principle of legality as to what may be contractually regulated in the face of statutory provisions to the contrary.

The recent case of Singh and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and Others [2018] 1 All SA 279 (KZP) saw Mr Singh, a resident of the Mount Edgecombe Country Club Estate (Estate), challenge the rules of the management association to which he was purportedly bound.

Mr Singh’s troubles began when his daughter was issued with speeding fines by officials of the Management Association (Association) for allegedly speeding on the roads of the Estate. Such fines were levied against Mr Singh’s account with the Association.

The Association has a “pay first, argue later” policy which meant that when Mr Singh did not pay the speeding fines, the Association suspended the Singh family’s access along the roads to their home. This prevented the family, or indeed anyone visiting the Singh’s property, from passing through the security boom at the entrance to the Estate. Mr Singh then instituted an urgent spoliation application to restore his family’s access to the roads. This application was coupled with another application challenging the legality of the Association’s rules in respect of the roads, with regard to, inter alia, the Association’s authority to issue fines and erect road signs, and the restricted access of domestic workers to the roads contained in the Estate.

The crux of the matter lay in whether or not the roads confined in the Estate were public roads. It was accepted by the Association in court that the roads were public roads in terms of the definition set out in the National Road Traffic Act, No 93 of 1996 (NRTA).

The NRTA at s57(6) provides that the Member of the Executive Council (MEC) concerned may authorise any association or club to display road traffic signs as they may deem expedient, subject to any conditions which the MEC may determine. Section 56(10) states that no person shall display any road traffic signs on a public road without having been previously authorised to do so by the MEC. Furthermore, the offence of driving a vehicle at speeds exceeding a prescribed limit falls within Schedule 3 of the Criminal Procedure Act, No 51 of 1977. These offences are considered minor, however, only “peace officers” are authorised to issue written fines to offenders.

The Association had placed signs along the roads advising of a speed restriction of 40km per hour, installed speed bumps, and erected barricades to shepherd traffic through their security boom in order to regulate the ingress and egress of traffic.

The court found that inherent to the concept of a public road is that the public has access to it and its regulatory regime is statutory and not contractual. However, the court did recognise the need for associations to enact such regulations with regard to roads and traffic, and pointed out the contents of s57(6) of the NRTA which provides specifically for associations to enact such regulations, albeit with the authorisation of the MEC. Private bodies, such as the Association, are obliged in terms of the NRTA to seek the necessary permission from the MEC, and it was common cause before the court that such authorisation had not been sought by the Association.

Accordingly, the court found the rules and the contractual arrangements with the respective members, to be illegal insofar as the public roads contained in such an estate are concerned. The Association would need to obtain the consent of the MEC should it continue to want to restrict the speed at which residents drive or the access of domestic workers to public roads to only certain hours of the day and only upon the presentation of an Association-issued entry permit.

Whereas previously associations have felt comfortable enacting what may appear to be fairly oppressive rules and regulations, and justifying their existence on the basis that by moving into and residing within such a community run by such an association, that the resident consents thereto. Now however, at least with respect to the use of public roads and the policing thereof within the community, the MEC’s authorisation will encourage the enactment of rules and regulations which are in line with general public policy as any rules found to be too suffocating would of course not be authorised.

Management associations should, therefore, confirm that they have obtained the requisite consents from the relevant MEC to ensure that the rules are enforceable upon their estate. For residents, it may be worthwhile raising a query with their respective management association as to whether or not they have received the aforesaid consents. To the extent that they have not, the rules as they stand, insofar as they relate to the roads in the estate, are unenforceable if challenged legally. There is nothing to prevent residents from complying with the rules willingly, however, this does not affect the legality of the rules.

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