End of the road debate

Community schemes across the country breathe a huge sigh of relief, following the judgment handed down by the Supreme Court of Appeal (“SCA”) on 28 March 2019, in Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh & others (323/2018) [2019] ZASCA 30.

Here is a brief history on the series of events leading up to the recent SCA:

  • Two members of the Mount Edgecombe Country Club Estate Management Association II (“the association”) approached the High Court for relief, challenging the lawfulness of certain provisions of the association’s conduct rules, including the association’s right to police the road network within the estate and to issue speeding fines (the road rules).
  • On 17 November 2017, the High Court issued an order in favour of the two members, declaring the association’s road rules invalid.  The High Court held that the estate’s roads were public roads, subject to the National Road Traffic Act 93 of 1996, and as such the association was required to obtain the necessary authorisations and/or consents under the National Road Traffic Act, before it had the power to regulate any aspect of the roads.
  • What followed was 16 months of confusion and uncertainty regarding the legal status of roads within gated communities across the country and their rights to control and administer the use of estate roads.
  • Thankfully the association, with special leave of the SCA, appealed against the High Court order, but only insofar as it related to the road rules.

The SCA summarised the issues for consideration as follows:  “Whether roads within a private housing estate are public roads as defined in the National Road Traffic Act 93 of 1996 and whether conduct rules ordaining a speed limit of 40 km/h within the estate are unlawful.

The SCA made the following important conclusions:

  1. The roads within the estate are not public roads.  The test to be applied in order to determine the nature of a road, is whether a section of the public uses the area or has a right of access (as opposed to access by invitation direct or implied) thereto.  With the exception of duly authorised guests, the SCA declared that there is no right on the part of the general public to traverse the estate’s roads and therefore the roads must be regarded as private in nature.
  2. The relationship between the association and its members is contractual in nature.  The rules of the association, including the road rules, constitutes a private contract entered into voluntarily when an owner elects to buy property within the estate.  By agreement, the owners acknowledge that they and their invitees are only entitled to use the roads laid out within the estate, subject to the conduct rules.
  3. Owners are responsible for their guest’s behaviour.  The SCA declared that any breach of the rules is a matter strictly between the owner concerned and the association.  Owners are therefore required to ensure that their guests comply with the conduct rules and the association is entitled to impose sanctions against owners as a result of their guest’s non-compliance.
  4. The association is entitled to prescribe a lower speed limit within the estate than that prescribed by national legislation.  The SCA found that it cannot be said that this goes beyond promoting, advancing and protecting the interests of the association’s members or is unreasonable. This is especially so, given the presence of children, pedestrians and animals upon or in the immediate vicinity of the roads themselves.

Whilst community schemes celebrate this victory, we wish to caution against overconfidence and urge all community schemes with internal road networks requiring regulation and management, to look carefully at their rules in the context of this judgment, to ensure that they are reasonable, appropriate and most importantly lawful.

Should you require any advice on this subject, or wish to discuss any related matter with a specialist community schemes attorney, don’t hesitate to contact our consulting department at consulting@paddocks.co.za for a no-obligation quote to provide the necessary legal assistance.

Article reference: Paddocks Press: Volume 14, Issue 04.

Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, has previously been a Portfolio Manager and a Legal & Compliance Officer of a large managing agency.

This article is published under the Creative Commons Attribution license.

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