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For those that live in an estate or have visited friends and family that live in one, you surely would have noticed the prevalence of strict road rules being implemented more often than not. The question that begs asking is; are these private rules in keeping with the laws of our country? Road signs, speed traps and hefty fines being imposed on residents were recently questioned and taken to task.
The most popular misconception is that these inner estate roads are deemed ‘private’ roads but are in fact ‘public roads’ in terms of the National Road Traffic Act (NRTA) and whilst non-compliance is still a criminal offence, it is yet to be regulated by the Administrative Adjudication of Road Traffic Offences Act (AARTO) or the demerit point system. The fact that estates are gated, patrolled by private security companies and often only allow visitors in by means of security codes and satisfying the vehicle and drivers licence screening, does not nullify the rules of a public road as per the NRTA.
A public road is defined as any road, street or thoroughfare or any place which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access and includes the verge of such road, street or thoroughfare, any bridge, ferry or drift traversing such road, street or thoroughfare, or any other work or object forming part of or connected with or belonging to such road, street or thoroughfare.
This was greatly contested in Singh and Another v Mount Edgecombe Country Club Estate Management Association Two and Other, where the applicant argued that the respondent was carrying out functions of traffic officers as defined in the NRTA on the roads, which are public roads in terms of NRTA. The respondent stated that all home owners agreed to be bound by their regime of control and access as provided for in the Rules of the estate.
However it is common cause that estates do not apply for permission from the MEC or the municipality concerned that would entitle them to impose such conditions they consider necessary in the circumstances. The Kwa-Zulu Natal High Court found that the respondent had errored in not having had taken the required steps to authorise and regulate their rules by the MEC. Albeit, on the surface, it may appear to be a case about a resident from a luxury estate refusing to submit to the rules of the road that are enforced by the homeowner’s association, but inadvertently it has brought to the forefront the demarcation between private and public law, and its application in terms of housing estates.
A landmark ruling was made earlier this year by the Supreme Court of Appeal[ ], private estates are now entitled to establish and enforce their own traffic rules and issue traffic fines. The SCA concluded that roads within the estate are not public roads and instead form part of a private township. Whilst members of the public are allowed to enter the state, there is no right of the general public to traverse these roads.
This judgement received much criticism, as it effectively legalises vigilantism and at the same time exonerates the vast majority of persons who enter estates, from accountability in terms of the law, as a contractual relationship lies between the home owner and the homeowner’s association.
Whether this matter will be heard at the Constitutional Court is yet to be seen but, for now at least, many South Africans living in suburban complexes and estates will shortly experience many more rules being implemented.
Arguments in favour and against this ruling will soon be the base of many coffee shop and casual conversations and however it eventually pans out, one can only hope that these new rules provide a much needed safety net for young people in our increasingly crime ridden suburbs.