By Sloan Wilson

01-11-2018

 

A number of articles have been published recently about the powers of governing bodies (such as Home Owners Associations) in private gated estates to create and enforce ‘road rules’ within the estate. The interest in this topic resulted to a large extent from a court case, Singh and Another vs Mount Edgecombe Country Club Estate Management Association Two (‘the Association’), which was heard in the Pietermaritzburg High Court. The case sparked fairly widespread discussion in legal circles and in the media.

The case dealt with numerous issues but this article is restricted to the ‘road rules’ issue.

The facts, very briefly, were as follows: The Association created ‘road rules’ that restricted speed to 40km/h in the estate and allowed the Association to impose a fine on any driver who exceeded the speed limit. Mr Singh’s daughter was ‘caught’ speeding on three occasions and fines were imposed by the Association. Mr Singh refused to pay the fines for the reasons set out below and the Association took the matter to court.

The Association’s case was that its authority to create and impose road rules arose from a contract concluded between itself and all owners. Essentially what the Association contended was that the estate’s governing documentation allowed the Association to create and enforce road rules; that all owners who bought property in the estate were aware of such rules and that they agreed that they would be bound by such rules upon becoming owners of property in the estate.

Singh did not dispute that he was aware of and had agreed to be bound by the rules but contended that the roads in the estate were ‘public roads’ and that the National Road Traffic Act (NRTA) was therefore applicable to such roads (and the NRTA stated that only persons authorised in terms of the NRTA could create and enforce road rules on public roads). He alleged that, as the Association had admitted that it had not obtained the necessary authorisation under the NRTA, the road rules were contrary to statutory law. He stated that it is not possible to contract out of the provisions of statutory law and the road rules created by the Association (by contract) were therefore illegal and unenforceable. The court agreed with Singh.

It seems that as a result of the court’s decision many people are under the impression that the governing bodies in private gated estates cannot create and enforce road rules in such estates unless they have obtained the necessary authorisation under the NRTA to do so. However, in my view, this impression is incorrect.

In the Mount Edgecombe case the Assocation conceded that the roads in the estate were public roads. But was this concession correct? Are roads in private gated estates ‘public roads’ or are they ‘private roads’?

The NRTA defines a ‘public road’ as “any road (or) street …. which is commonly used by the public …. or to which the public has a right of access …..”. In the Mount Edgecombe case the court did not have to decide whether the roads in the estate were in fact public roads or whether they were private roads as the Association conceded that the roads were public roads. In my view this concession was not necessarily correct (although it appears that the Association may have had no option as their governing documentation referred to the roads as public roads).

Many gated estates in South Africa lawfully restrict the public’s access to the estate (and the roads in the estate) unless they (the public) have express permission to enter the estate. In my view the mere fact that people like contractors and visitors are allowed onto the estate and its roads with the consent of an owner does not mean that the roads are “commonly used by the public” or that the public have “right of access”. Some houses which are not situated in gated estates have long driveways which by all accounts look similar to the roads leading to the houses in gated estates. The public do not have legal access to these houses. The mere fact that the owners allow authorised delivery vehicles, contractors and visitors to use these driveways does not make them public roads. There are a number of court cases which support this view.

The test for determining whether roads are ‘used by the public’ and whether the public have ‘right of access’ to roads in an estate is whether the public requires the consent from an owner in the estate (or someone authorised by him/her to give consent) to use such roads. The question may not be so easy to answer in respect of some estates, but I believe that in many estates the application of this test will reveal that the roads are private roads and not public roads. In such estates the governing bodies are, in my view, free to make and enforce ‘road rules’ without obtaining authorization under the NRTA to do so, provided the documentation governing the estate (for example the Constitution or the Memorandum of Incorporation) allows them to create such rules.