Traffic Rules in Gated Communities in South Africa: A Reflections on Mount Edgecombe Country Club Estate Management Association Ii (Rf) NPC v. Singh Case

Traffic Rules in Gated Communities in South Africa: A Reflections on Mount Edgecombe Country Club Estate Management Association Ii (Rf) NPC v. Singh Case Senior lecturer Moffat Maitele NDOU1 Abstract In a recent Supreme Court of Appeal judgment in Mount Edgecombe Country Club Estate Management Association II (RF) NPC v. Singh 2019 (4) SA 471 (SCA) (Mount Edgecombe v. Singh), the court found that a homeowner’s association has the power to regulate traffic on the roads within a gated estate. The SCA found that, since the roads were private roads, and the National Road Traffic did not apply; the owners of the properties within the estate were contractually bound to comply with the rules of the homeowner’s association. The homeowner’s association was entitled to make traffic rules and to police such rules in the roads within the estate. The SCA found also, in passing, that even if the roads were public roads, the owner of property in the estate would still be contractually bound by the rules. Such rules would not be against public policy. This submission argues that the SCA is correct that the roads are private roads, and the property owners are contractually bound by the rules. However, the position would be different in respect of public roads. The homeowner’s association may only enforce the rules by displaying road signs and they can only do so if they are authorised in terms of section 57 of the National Road Traffic Act. Displaying road signs on a public road without authorisation is an offence and if the roads in Mount Edgecombe v. Singh were public roads, it would be against public policy to enforce the rules. The homeowner’s association would need to seek authorisation before enforcing such rules. Keywords: public road; private road, traffic offences, gated community; public policy; domestic employee; contractual relationship; road traffic signs; speeding; authorisation. JEL Classification: K25 1. Introduction In a recent Supreme Court of Appeal judgment in Mount Edgecombe Country Club Estate Management Association II (RF) NPC v. Singh (Mount Edgecombe v. Singh),2 the court found that a homeowner’s association has the power to regulate traffic on the roads within a gated estate. The decision was based on the fact that the owners of property within the gated community had contractually bound themselves when they bought the property. This submission will evaluate that decision of the SCA, in Mount Edgecombe v. Singh. This will be done in the context of the decisions of the court below. 2. The facts Mount Edgecombe Country Club Estate Management Association II (RF) NPC (management association) is an association of homeowners. According to the management association’s memorandum of incorporation, all the owners of the residential property situated within the Mount Edgecombe Country Estate Two (the estate) must be members of the management association. Where the property is owned by a close corporation, a company or a trust, a natural person must be nominated to be a member of the management association. Mr Singh (the first respondent) and Mr Ramnandh (the second respondent) are residents and owners of a property, through a juristic person, in the estate. The estate comprises of 890 freehold and sectional title residential units. It consists of extensive common property, which includes, sporting facilities, golf course, dams, community facilities, roads, function venues, and a clubhouse. The estate is surrounded by a two-meter-high palisade fence with electricity security wing. The gated access points in the estate are controlled by security guards. Some of the access points are guarded on a 24-hour basis every day of the year. The estate is also home to several species of small animals protected within the estate. It is serviced by a 1 Moffat Maitele Ndou - LLB, LLM, Faculty of Law, North West University, South Africa, . 2 (323/2018) [2019] ZASCA 30 (28 March 2019). Perspectives of Law and Public Administration Volume 12, Issue 3, October 2023 376 network of roads and pathways registered in the name of the management association. The roads and pathways are used by motorised vehicles, pedestrians and golf carts. Clauses 20 and 21 of the memoranda of incorporation gives the directors of the management association, the power to make reasonable rules for specific purposes and this includes the right of the management association to impose reasonable financial penalties on members who fail to comply with such rules. The memorandum of incorporation further gives the directors powers to enforce the rules; take steps necessary to remedy the breach of the rules; and debit the costs of doing so to the member concerned. The rules are binding to all members of the management association, and they apply equally to the members provided they are reasonable and to the interest of the management association. The rules formed part of the agreement to sell and purchase the property. In terms of the rules, the speed limit on the roads within the estate was 40km/h. During October 2013, the daughter of the first respondent was issued with three contravention notices for exceeding that speed limit. The first notice for driving at a speed of 69. The second and third notice was for driving at the speed of 67 and 65 respectively. In each of the three instances a penalty of R1500 was imposed. On appeal to the estate management, the first respondent challenged two of the offences, but not the third. The first respondent successfully challenged one of the offences. According to the management association rule of ‘pay first and argue later‘, the first respondent had to pay R3000, and he could then lodge an appeal, of the decision of the estate management, within seven days. After the first respondent failed to pay R3000, the management association deactivated his access cards and biometric access. In 2014, the first respondent launched an application challenging three categories of the rules. 3 These rules were challenged on the following grounds:4 a) Rules 7.1.2 and 7.3.2.5 These are rules authorising the management association to police the roads within the estate. This includes the issuing of speeding fines and/fines for contravening any law governing the control of traffic on roads. By policing the roads, the first respondent argues, the management association purported to carry the functions of traffic officers or peace officers. The first respondent further argued that this was the position because the roads which the management association policed were public roads in terms of the National Road Traffic Act. 6 As a result of the deactivation of the access card and biometric access, the first respondent challenged the power of the management association to restrict or limit the right of access the estate by owners and residents. b) Rules 2.1, 4.7 and 4.81.7 These are rules that restrict the free choice of owners and residents with regards to contractors and service providers they may u (...truncated)