December 7, 2017

No more policing roads in gated communities

Another ground-breaking judgment applauded by the public (especially the ones residing in gated estates) was handed down on 17 November 2017 by the KwaZulu-Natal High Court in the matter of Singh and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and Others (AR575/2016) [2017] ZAKZPHC 48.

Before digging into this judgment, let’s take a few steps back…

Singh owns three properties in the Mount Edgecombe Country Club Estate Management Association Two (“MECCEMA”) and in terms of the various sale agreements entered into by Singh when he purchased the properties, he bound himself to the constitution and rules of the MECCEMA.

In October 2013, his daughter transgressed the speed limit in the estate and Singh refused to pay the fines that were levied as a result of this transgression.

Following Singh’s refusal to pay the fines, the MECCEMA deactivated both his and his family’s access cards and biometric access to the estate, which led to an application to the KwaZulu-Natal High Court by Singh for an order declaring certain conduct rules, such as the MECCEMA’s entitlement to impose penalties for speeding transgressions, to be unlawful.

The Kwazulu-Natal High Court held that:

  • The relationship between Singh and the MECCEMA was located in contract;
  • The rules of the MECCEMA as agreed upon between Singh and the MECCEMA had the intention of maintaining a structure within which all its residents can feel safe and secure as regard to the  environment into which they have bought and of the MECCEMA in its capacity as the enforcement  authority with respect to its rules;
  • The relevant rules relating to the setting of a speed limit did not provide for any implication on a third party where such third party (who gained access to the estate in a manner other than through the authority of a resident) disobeyed the rules of the MECCEMA. The control of the speed limit within the MECCEMA therefore fell directly within the provisions of the contract concluded between the  MECCEMA and its members;
  • The MECCEMA’s rules also did not exclude the enforcement of the provisions of the NRTA by the  relevant authorities within the estate; and
  • The rules are “superimposed” on any national or municipal legislation and do not assume them.
  • Accordingly, the Court found that such rules are not unlawful.

Singh appealed the decision, securing a landmark ruling regarding gated community living, when a full bench of Judges at the KwaZulu-Natal High Court in Pietermaritzburg upheld his appeal. They found that the roads in most gated communities fall directly within the definition of a “public road” as is defined in the National Road Traffic Act (“the NRTA”).

The use of all public roads is regulated by the NRTA and, as such, any dispute arising from the enforcement of road laws has to be settled in terms of the NRTA. Any contravention of the NRTA is considered to be an offence and prosecution may follow. The definition of a public road contained in the NRTA makes it clear that determining whether a road is public or not is not linked to who ‘owns’ or maintains the road, but rather whether the public has a right to use the road or has common access to the road.

Prior to this judgment, most people regarded roads within a gated community as a private road and were therefore under the impression that this entitled the relevant Home Owners Association / Body Corporate to impose fines for exceeding speed limits within the estate / complex. This is, however, incorrect considering the definition of a public road as contained in the NRTA which is “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”.

The High Courts in South Africa have established that this definition of a public road must be interpreted extensively, and that the legislature’s intention was to include all roads used by the public, even where there is no right of common entry and where permission to enter is required.  Accordingly, even though entry is controlled by way of gated security or other security measures, the roads are still regarded as public roads and therefore fall within the scope of the NRTA.

A Peace Officer in the NRTA is defined as a “traffic officer and also a traffic warden appointed in terms of the laws of any province”. Based on this definition, a private security employee cannot be regarded as a traffic officer or a traffic warden and, as such, would not have the authority to fine a person for contravening the NRTA.

The NRTA further states that only a local authority has the power to appoint a person as a traffic officer, along with all the powers and responsibilities that go with the position. A local authority is defined as a transitional metropolitan substructure, transitional local council or a local government body. Neither a private security company nor a gated community falls within the aforementioned definition of a local authority, and would therefore not be able to appoint traffic officers or any person to act as a traffic officer.

The KwaZulu-Natal High Court indicated that the MECCEMA had not taken the necessary steps required by the NRTA and that enforcement may only be carried out by an officer authorised to do so.

It is clear from this judgment that only duly authorised persons and/or bodies may erect road traffic signs. Private estates cannot set up speed measuring equipment‚ stop anyone who may be making themselves guilty of an infringement, or issue such person with a fine as a result of such infringement.  If a private estate intends to erect its own road traffic signs, authorisation may only be granted by the Minister of Transport, the MEC, or a person who is delegated such powers by the Minister or the MEC.

In closing, the judges said that “Courts would be failing in their duties were they to overlook and/or condone flagrant and deliberate contraventions of statutory provisions. If in fact there are other associations and/or estates in the country, who, like the first respondent, either through ignorance or plain arrogance on their part, have seen it fit not to comply with statutory provisions, it’s time that they did.”

It may however not be the end of this battle yet, in that the president of the Association of Residential Communities, Jeff Gilmour, has confirmed that they will be challenging the ruling, which he described as a “poor judgment”, as estates maintain that they do have the right to decide how to govern themselves.

Almie Fourie
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