Living in gated communities has become increasingly popular. Part of the reason many South Africans are choosing to live in these is for security purposes. As a Body Corporate your main concern is servicing the members of the estate and ensuring that measures have been put in place to afford people the peace of mind so badly needed.
However, what do the Courts say about these Body Corporate ‘laws’?
Early in 2018 a case was brought to the High Court in Durban by a resident - Mr S of an upmarket gated estate. He was disgruntled after his daughter was fined for driving over the speed limit placed on the roads inside the estate – as per Body Corporate Rules. The fine was added to his account, and, after his failure to pay – the access cards held by the members of his household were suspended, leaving the family locked out of the estate.
As a result, the homeowner Mr S brought a Declaratory Order that the rules of the estate are unlawful. Once at Court he further brought to the Court’s attention that domestic workers working in homes within the estate have very restricted access on the roads and must be driven in cars by the owners and are not allowed to be walking on the roads – which also caused fines to be imposed on homeowners that did not obey these rules.
The Court that first heard the matter was presided over by Acting Judge Topping. He found that the rules made by the Body Corporate were valid; his reasoning was that lawful contracts were concluded between the homeowners and the Body Corporate. However, Mr S was not satisfied and appealed this matter to a full bench. Upon appeal the Court agreed with Mr S that the rules were invalid.
The Court held that despite the binding contracts concluded between homeowners and the body Corporate, the roads inside the Estate are public roads and as such must be governed accordingly. The National Road Traffic Act states that traffic rules such as those made by the Body Corporate cannot be made without the permission of the Minister of Transport/or his or her delegate/ alternatively by a member of the Executive Committee or the Municipality.
As a result of the Body Corporate’s negligence to acquire the necessary permission their rules were held to be invalid and the Court suspended the rules for a period of 12 months to allow the Body Corporate to obtain the permission.
Further, the Court held that the restriction on domestic workers’ movement was a gross infringement on human rights which included rights such as; dignity, equality, freedom of movement, freedom of association, freedom of occupation and fair labour practices. Rules such as this had to be done away with altogether.
The moral of this story – and the message that Body Corporates can take from this case - is that although everyone including the Courts know the purpose of these gated communities is to ensure safety and to do so they have rules; it does not mean that the finer details, such as obtaining the permissions can be avoided.
People who choose to live in gated communities have chosen to do so, because of the restricted access and so that their children can walk around their neighbourhoods freely – it is for this reason the Body Corporates impose rules of speed limits and restrict the movement of people on the roads. However, as much as this is appreciated, in order to ensure
homeowners can enjoy these benefits of gated communities – they must follow the correct procedures that have been put in place so as to have those rules declared valid.
It may seem like a tedious exercise that is impractical but even if you deem it so, it does not negate its necessity. It is clear from the judgment in the case discussed above that the Court understood the purposes of the rules and that homeowners signed contracts when buying in these Estates. Nevertheless they still held that if there is law regulating something, it must be upheld.
If you are of the opinion that your Body Corporate needs to have their contracts examined, or if you need to consult on what regulations must be followed to ensure that your Estate has fully complied and can assure homeowners that they have made the right choice; simply contact us for a consult to give you the peace of mind you so dearly deserve!