MAIN IMAGE: The roads in the Mount Edgecombe Country Club are private roads says the Supreme Court of Appeal.
There has been a ruling by the Supreme Court of Appeal (SCA) that the roads within a KZN housing estate are private thus they may set and enforce their own traffic rules – but this ruling has been received with concern by some.
At first glance this may appear to be a case about a resident of a luxury estate refusing to submit to the road rules set and enforced by the latter’s homeowners’ association, but it has brought to the fore the demarcation between private and public law, and it’s application in terms of housing estates.
Background
The daughter of Niemesh Singh, a resident of Durban’s upmarket Mount Edgecombe Country Club, received three fines (each R1 500) for breaking the estate’s 40km/h speed limit. Upon his refusal to pay all the fines, the homeowners’ association deactivated his and his family’s access cards and biometric access to the estate.
Singh had his access to the estate reactivated by filing an urgent court order with the KwaZulu Natal High Court. He and a fellow resident then challenged among others the validity of the estate management’s road rules saying the latter didn’t have the power to exercise the rule of law over public roads – that lies with the relevant government authorities as set out by the National Road Traffic Act. The case was dismissed by the Durban High Court but upon appeal upheld by the Pietermaritzburg High Court. The latter found that the road rules were invalid but suspended the invalidity for 12 months to give the HOA time to obtain the necessary authorisations and/or consents under the National Road Traffic Act.
However, the management association lodged an appeal with the backing of the Association of Residential Communities, an industry body with membership of 300 estates in South Africa. The SCA ruled that the roads within the estate were private roads, not public roads. Furthermore, that the owners, when they chose to buy property in the estate, entered voluntarily into a contractual agreement that they will submit to estate’s conduct rules. “The conduct rules, and the restrictions imposed by them, are private ones, entered into voluntarily when an owner elects to buy property within the estate. By agreement, the owners of property within the estate acknowledge that they and their invitees are only entitled to use the roads laid out within the estate subject to the conduct rules. Any third party invitee only gains access to the estate with the prior consent of the owner concerned. Upon gaining access to the estate, responsibility for any breach of the conduct rules by the invitee is that of the owner,” said Judge Visvananthan Ponnan. Read the full judgement here.
Roads in housing estates – private or public?
According to adv. Don Smart “most, if not all roads within a housing estate are not ‘private roads’ but they are in fact public roads in terms of the law they are regulated by the provisions of the National Road Traffic Act 93 of 1996 (NRTA) notwithstanding anything to the contrary that the estate management may state in their rules. Non-compliance is still a criminal offence”.
Smart says further the fact that the estate is gated and has access control does not make the roads private, but they remain public roads and all road users within the estate have the right to protection of the NRTA.
Howard Dembovsky, the chairman of the nongovernmental non-profit organisation Justice South Africa is concerned the SCA’s ruling has set a dangerous precedent. “This judgment has me very concerned because it effectively legalises vigilantism on the one hand, and exonerates the vast majority of persons who enter estates from accountability in terms of the law on the other,” he said.
He explains: “By my reading of this judgment, and in particular, paragraph 20 thereof, any person other than the homeowner concerned, in operating any vehicle in contravention of any provision of the National Road Traffic Act within the estate, may do so without any fear of being taken to task by anyone other than the homeowner. This is because the homeowner is bound by contract, and vicariously responsible for the behaviour of his or her “invitees” in terms of the contract between him or her and the Home Owners’ Association.
“In essence, this means that all persons other than the direct signatories to the contract between the homeowner and the Home Owners’ Association are exonerated from the provisions of the National Road Traffic Act. That, in my view, is exceptionally alarming.”
In conclusion, he said it is clear to him that, “according to the SCA, on estate roads throughout South Africa, I have no right to protection and benefit of the law. Nor, I might add, does anyone else who uses “private roads”. This includes the homeowners themselves.”
Read his full statement here
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