Private estates in South Africa are entitled to establish and enforce their own traffic rules and issue traffic fines.
This was the finding of the Supreme Court of Appeal (SCA) which ruled on a long-running case in which Niemesh Singh, a resident of Mount Edgecombe Country Club Estate, claimed that speed trapping in the estate was unlawful.
In 2013 Singh’s daughter was issued with three contravention notices for exceeding the speed limit imposed by the estate.
In each of the three instances, a penalty of R1,500 was imposed.
The KZN High Court had previously found that the estate had not taken the steps required by the National Road Traffic Act to erect road signs, and also said that enforcement may only be carried out by a peace officer.
However, on appeal, the SCA ruled that the roads within the estate are not public roads and instead form part of a private township.
“Whilst it is correct that some members of the public (or persons other than those residing in the estate) are permitted to enter the estate, there is no right on the part of the general public or any section thereof to traverse the roads,” said the SCA’s Judge Ponnan.
“This has been the historical position since the estate was first established. The non-owners who are permitted to enter the estate are persons who are there with the authority and permission of the owners, and are not to be regarded as forming part of the ‘public’ for the purposes of the definition of ‘public road’.”
He added that when the respondents chose to purchase property within the estate and become members of the Association, they agreed to be bound by its rules.
“The relationship between the Association and the respondents is thus contractual in nature. The conduct rules, and the restrictions imposed by them, are private ones, entered into voluntarily when an owner elects to buy property within the estate.”
Commenting on the ruling, chairperson of Justice Project SA, Howard Dembovsky said that this judgment may set a very dangerous precedent.
“This judgment has me very concerned because it effectively legalises vigilantism on the one hand, and exonerates the vast majority of persons who enter estates from accountability in terms of the law on the other,” he said.
“By my reading of this judgment, and in particular, paragraph 20 thereof, any person other than the homeowner concerned, in operating any vehicle in contravention of any provision of the National Road Traffic Act within the estate, may do so without any fear of being taken to task by anyone other than the homeowner.
“This is because the homeowner is bound by contract, and vicariously responsible for the behaviour of his or her “invitees” in terms of the contract between him or her and the Home Owners’ Association.”
In essence, this means that all persons other than the direct signatories to the contract between the homeowner and the Home Owners’ Association are exonerated from the provisions of the National Road Traffic Act, he said.
Dembovsky also warned that estate rules are typically only specific in terms of speed contraventions, and neatly lump ‘any traffic violation other than speeding’ into one monetary penalty.
He provided the below example of an estate in Midrand:
“You really don’t need to be a rocket scientist to figure out that some road traffic offences are considerably more serious and dangerous than others,”he said.
“Why then would it be that “any traffic violation other than speeding” is regarded as a misdemeanour in Midstream Estate, and most other estates, of which there are more than 8,000?
“If the Constitutional Court upholds this judgment, not only will I be extremely surprised, but all of my friends who live in private estates can come visit me with pleasure, but under no circumstances will I go visit them.”
You can read the full judgement below: