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 homeowners’ associations, and bodies corporate (hereafter referred to as
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
The recent case of Singh and
another v Mount Edgecombe Country Club Estate Management Association Two (RF)
(NPC) and others  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
- 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
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
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
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.
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
For any further information and assistance,
please feel free to contact Rajaram Mvulane Attorneys at email@example.com
GUEST AUTHOR BIO
Arisha Rajaram is a hardworking, dedicated and diligent worker. She obtained her LLB from the University of Kwa-Zulu Natal in 2013. Arisha is an effective researcher who has been awarded the Penny Andrews Award during her studies. She was admitted as an attorney of the High Court on 12th October 2015. Arisha has further obtained an advanced course in Business Rescue from the Law Society of South Africa (LEAD) and UNISA and has completed short courses on the Forms of Business Enterprises (Law Society of South Africa – LEAD), Sectional Title Practices (Paddocks) and Insolvency Law (Law Society of South Africa – LEAD).