AA - 2019

Author: The Supreme Court of Appeal of SA

Private gated estates are entitled to draw up their own rules, including setting speed limits on internal roads and imposing “fines” for exceeding them, the Supreme Court of Appeal ruled on Thursday.

The ruling, by Judge Visvanathan Ponnan (with four judges concurring), overturned a previous judgment delivered by judges in KwaZulu-Natal who declared invalid “road rules” at Durban’s luxury 890-unit Mount Edgecombe Country Club Estate, saying the management association was usurping the role of the transport MEC and local municipality.

The issue went legal after estate resident Niemesh Singh’s daughter received three fines for going over the 40km/hr limit.

Singh refused to pay the fines – which totalled R3,000. He and his family’s biometric access to the estate was cut off.

He sought and obtained an urgent court order reinstating his access and then, along with fellow resident Munshurai Ramandh, launched further proceedings – successful in KwaZulu-Natal – challenging the rights of the homeowners’ association to “act as police officers” and other rules regarding access of domestic workers to the estate.

The association then took the roads issue on appeal to the SCA and was backed by the Association of Residential Communities – a body representing 300 estates in the country.

Judge Ponnan said in the lower court, the association had incorrectly conceded that the roads in the estate were “public roads” and were subject to the National Road Traffic Act.

But, he said, it was clear that they were not public roads.

“The estate is a private township which constructed its own roads. It is enclosed by a 2m  palisade fence which is topped with electrified security wiring.

“All ingress and egress is strictly controlled. Gated access points are controlled by security guards, visitors are required to have an access code and owners use biometric scanning,” he said.

“While it is correct that some members of the public other than those residing on the estate are permitted to enter, there is no right on the part of the general public to traverse the roads.”

Judge Ponnan said even if they were public roads, the approach of the KwaZulu-Natal court was wrong.

“They reasoned that the association was usurping the functions of traffic authorities by erecting traffic signs and speed humps. But the relationship between an owner and the association is a private, contractual one.

“It cannot be said that by ordaining a lower speed limit within a gated estate than that prescribed by national legislation goes beyond promoting, advancing and protecting the interests of residents, or is unreasonable, especially given the presence of children and wildlife.

“I fail to see why it is objectionable.”

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