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Stay at home, and let’s work together to combat COVID-19. For more information visit: www.sacoronavirus.co.za

Residential Estates: Limiting Association Rules

Residential Estates: Limiting Association Rules

Arisha Rajaram

Due to the frequency of criminal related activities in residential areas, people are favouring the communal living within a gated residential estate. While this does provide for a secure environment, there are various issues which may arise regarding the rules of the home owners’ associations, and bodies corporate (hereafter referred to as associations).

In certain instances, the rules made by the association may seem to infringe on the resident’s rights and may appear to be unfair to certain classes of people. Many residents and associations of these gated residential estates have had to question:

  • whether the roads within such estates are deemed to be private roads; and
  • if they are not regarded as private roads, whether the estate may lawfully impose a fine on the residents for driving on these roads.

The recent case of Singh and another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and others [2018] 1 All SA 279 (KZP) dealt with examples of irregularities in the body corporate rules, and assists these residential estates in answering the above questions.

Facts of the case

The Appellant and his family resided in a property on the Respondent’s estate. The Appellant’s daughter was issued with a fine for driving at a speed higher than that which was accepted in the complex. The fine was then levied against the Appellant’s account. The Appellant was not afforded an opportunity to dispute the fine. According to the body corporate rules of the Estate, a fine may be levied for travelling at a speed higher than that which is accepted, and the resident is obliged to first pay off the fine and thereafter argue the matter or dispute the charge.

A further issue which arose surrounding the body corporate rules in relation to road use was the issue of domestic workers within the estate. The rules state that domestic workers are not entitled to walk on the roads in the estate when they are on duty, and they ought to make use of the designated bus stops around the estate. The Appellant objected to these rules and procedures on the basis that they were repressive, in that they restricted the rights of domestic workers to freely use public roads and it further restricted their rights to choose their working hours.

The court had to determine whether the:

  • roads in a gated residential complex would fall part of a public road;
  • speed limit may be adjusted according to the association’s discretion; and
  • rules restricting domestic workers rights be deemed unlawful.

Public road vs Private road

The court referred to the National Road Traffic Act 93 of 1996 (the Act) to ascertain what is deemed a public road, and whether the roads within a gated residential estate would be deemed to be a public or private road. The Act is regarded as National legislation governing all use and enjoyment on public roads. In section 1 of the Act, a public road has been defined as any road, street or thoroughfare which is commonly used by the public, or any section which the public has a right of access to.

In terms of this statutory definition, the court held that roads within a gated estate would fall part of a public road, and the public would be entitled to have full access to these roads. Should the public be denied access, legal consequences may arise regarding the statutory laws which do not prohibit access to the public roads.

Prescribing speed limits and issuing fines – Authority required by statute

The issue regarding speed limits and fines within gated residential estates creates a lot of confusion amongst unsuspecting residents.

Section 59(1) of the Act confirms that the general speed limit within an urban area shall be prescribed by the Minister, and this is currently set at 60km per hour.

Should the general speed limit in respect of any type of vehicle need to be increased or decreased, this would need to be prescribed by the Minister, subject to compliance with certain formalities, as required by section 59(3) of the Act.

The case noted that since the roads in a residential estate are deemed public roads, the association would have needed to obtain prior approval from the Minister before amending the speed limit and imposing any fine. The association failed to make a request to the Minister, and the required permission was not obtained. Therefore, the association lacked the necessary authority to impose a speed limit and was in direct contravention of section 59(3) of the Act.

Furthermore, section 56(1) of the Act states that only the Minister may prescribe a sign or marking for a speed limit, and therefore any signs or markings displayed in the gated residential estate would be regarded as unlawfully displayed.

The Act further stipulates that only a traffic officer, who is appointed in terms of section 3A of the Act, and any member of the Municipal Police in terms of section 1 of the South African Police Service Act 68 of 1995, would have the authority to impose or issue a fine to any public member for speeding on a public road.

The fine issued by the association to the Appellant was invalid as it was not issued by an authorised traffic officer, and was therefore unlawful and in breach of the Act.

Non-compliance with the Act

Failure to adhere to the provisions of the Act will have serious consequences for both the individuals and the associations. Section 89(1) of the Act, read with section 59(4) of the Act states that any person who has contravened the Act, and has been convicted of an offence shall be liable to a fine or imprisonment for a maximum period of 3 (three) years.

Restriction on domestic workers rights

On inspection of the association rules, the court noted that there is a need to have strict security measures in place, however it was found that the rules relating to domestic workers is restrictive and repressive. The rules affect the basic rights of domestic workers which is not in line with the Constitution of the Republic of South Africa, 1996 (Constitution).

The domestic workers were categorised into a certain class of people, and were deemed to pose a security risk to the residents within this gated residential estate. They have essentially been precluded from exercising their rights by not being allowed to engage in activities on the roads within the gated complex. Their right to equality in terms of section 9 of the Constitution and human dignity, in terms of section 10 of the Constitution have therefore been impaired.

The court noted that these rules had specifically restricted the domestic worker’s right to be able to traverse freely on public roads. In particular, their right to freedom of movement in terms of section 21 of the Constitution, and their right to freedom of association in terms of section 18 of the Constitution had been contravened.

The court therefore held that the associations rules relating to domestic workers being allowed to walk on public roads were unreasonable and unlawful.

Conclusion

The court concluded that the association had contravened these statutory provisions, as they failed to obtain authorisation for the speed limit and signage from the Minister, prior to imposing the fine on the Appellant. As a result, the court held that the certain rules prescribed by the association are invalid and the application of such rules would be suspended for a period of 12 (twelve) months to allow for the association to obtain the necessary authorisation and consent under the Act.This case does however bring to light the injustices that may be ongoing in other gated residential estates, and should be viewed in a serious light by all associations and bodies corporate to prevent further contraventions and irregularities.  

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