This judgment overturns a previous judgment by the High Court in KwaZulu Natal in which it was held that the roads within private estates fell within the definition of “public roads” in terms of the National Road Traffic Act, No 93 of 1996 (NRTA) and the enforcement of speed limits on such roads by the estate in questions’ homeowners’ association amounted to the appropriation the functions reserved exclusively for the traffic authorities under the NRTA, and that such conduct and rules were therefore unlawful.
The Supreme Court of Appeal took a very different approach to the determination of whether the roads within such private estates are indeed “public roads”. The court looked at the definition of “public road” in the NRTA - “any road, street or thoroughfare or any other place … which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access” - and emphasised that the right of the public to enter and exit the estate in question was strictly controlled by boundary walls, electric fencing, security guards, access codes and biometric scanning. Therefore, the general public did not have common use or right of access to the private roads within the estate in question or in fact any similar private residential estate. The general public also does not include those persons who have the temporary right of access to such estate and its roads, which is only obtained with the permission of owners within the estate. While some members of the public are permitted to enter the estate, there is no absolute right on the part of the general public or any section thereof to enter into such an estate and use its roads.
When one chooses to purchase property in such a private estate and become a member of its homeowners’ association, one voluntarily agrees to be bound by its rules. The relationship between the homeowners’ association and its members is therefore a contractual one and the control of the speed limit within the estate falls squarely within the provisions of that contract concluded between the homeowners’ association and its members. The rules are also only enforceable between the contracting parties themselves and not against the general public.
The court therefore expressly refused to sustain the High Court’s ruling that the association was usurping the functions reserved exclusively for the authorities under the NRTA.
The court further emphasised that a private estate ordaining a lower speed limit than that which is prescribed by national legislation on public roads does not go beyond promoting, advancing and protecting the interests of the homeowners in the estate, particularly given the presence of children, pedestrians and animals on the roads – the enforcement of such rules could hardly be seen as objectionable in the opinion of the court.
Should you reside in such a private residential estate, as is the case with approximately one out of every ten South Africans, the above supreme court judgment leads us to consider the importance of becoming familiar with the rules and constitutional documents of the homeowners’ associations we may belong to, since such homeowners’ associations are legally entitled to enforce these rules and financial sanctions against property owners residing in those private estates.