A fork in the road: Distinguishing between ‘public’ and ‘private’ roads

August 1st, 2018
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By Tim Pearce

It is time to put up a ‘stop’ sign and halt the growing misconception that the roads in all private gated community estates are public roads and are, therefore, governed by traffic laws under the National Road Traffic Act 93 of 1996 (the Act). Secondly, it is necessary to dispel the notion that the appealed judgment of the KwaZulu-Natal Division of the High Court in the matter of Singh and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and Others 2018 (1) SA 615 (KZP) is authority for saying that the roads in gated estates are not ‘private’ but ‘public’ roads.

Applicability of the Act

The distinction between ‘private’ and ‘public’ roads is the critical issue because the Act applies only to public roads. The owner of a private road may manage the private road without any reference to the Act. The Act defines a ‘public road’ as follows: ‘Any road … 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.’

The Singh case

In this judgment the court did not make a finding that the roads in the Mount Edgecombe Country Club Estate are public roads. Paragraph 23 of the judgment reveals that the Mount Edgecombe Country Club Estate Management Association (Mount Edgecombe Association) did not dispute that its roads in the estate were public roads. Rule 7.1.1 of the Mount Edgecombe Association’s Conduct Rules expressly declares that its roads are public roads and, therefore, under the jurisdiction of the Act (see para 15 of the judgment).

The Mount Edgecombe Association argued that owners in the estate contracted with each other to manage the roads according to their own rules and, therefore, the Mount Edgecombe Association’s  Rules should operate as a parallel system to the statutory laws provided by the Act.

In short, the Mount Edgecombe Association’s argument was that they were free to apply a private regulatory regime to the roads within the estate. It was this argument that was unsuccessful. In para 25 the judge stated: ‘Inherent in the concept of a public road is that the public has access to it and that the regulatory regime is a statutory one [namely] the [National Road Traffic Act].’

The point is that the court was not called on to consider and decide whether the Mount Edgecombe Association’s Estate roads were private or public roads. The Mount Edgecombe Association declared their roads to be public roads in their rules and it would seem that the Mount Edgecombe Association  shot themselves in the foot, because the definition of a public road as per the Act – properly interpreted – does not mean their roads are ‘public’ roads.

When do roads on private land become ‘public’ roads in terms of the Act?

For an owner of a road on private land to decide whether the road is a public road, the owner has to ask: ‘Is my road or a section thereof commonly used by the public?’

In the case of R v Papenfus 1970 (1) SA 371 (R), the court had to deal with the question of whether a road within a privately owned Colliery was a public or a private road. At p 376E the judge stated as follows:

‘It seems to me that in this context the word “public” cannot include persons who as individuals are there with the express or implied permission of the Colliery. Employees and their dependents, visitors and guests of the Colliery or of the Colliery’s employees and persons coming to the Colliery to do business with the Colliery cannot be regarded qua the Colliery as members of the public. They are all persons who as individuals are there with the special consent (either express or implied) of the Colliery.’ It is a mistake to assume that a member of the public is always a member of the public. It is the ‘context’, which is of importance.

A person walking down the main street in town to a doctor’s appointment is a member of the public, but ceases to be a member of the public when by permission, that person enters the doctor’s rooms. Such person then becomes the doctor’s patient. So too, the plumber called out to do work at the home of an owner in a gated estate is a member of the public while on the road to the estate, but once the plumber is permitted to enter the gate, the plumber is no longer a member of the public. The plumber has entered the estate as a plumber and uses the road in the estate as a plumber invited by the resident and permitted by the Estate Management.

In deciding whether a place is ‘used by the public’, the test is, whether the user requires consent from the owner in the Estate. This is not always an easy test to apply because, consent may be express or implied. For example:

  • Express permission is required to enter a gated estate.
  • A hotel makes an implied invitation to members of the public to enter the hotel. Once a member of the public crosses the threshold into the hotel that person ceases to be a member of the public and instantly becomes a guest of the hotel.
  • The Mount Edgecombe Estate Two has two gates. The west gate and an east gate, which would bring the user of the road to the doorstep of the Gateway Shopping Mall. Any person living in the Mount Edgecombe area (but outside of the gated estate) who wishes to visit the shopping mall would have to travel along the main highway and take the off-ramp to the shopping mall. This trip would be so much easier if a member of the public could use the estate’s roads by entering the west gate and exiting at the east gate. However, no one except a resident has consent (express or implied) to use the Mount Edgecombe Estate’s roads as a thoroughfare.

The Community Schemes Ombud Service adjudicator in the matter between Gregory and Midstream Estate Home Owners Association (case no CSOS1050/GP/17, 27-2-2018) made a finding that the roads in this estate are public roads. The adjudicator’s reasons for making such a finding are not altogether clear. The adjudicator was strongly influenced by the Act and the Administrative Adjudication of Road Traffic Offences Act 46 of 1998. However, this begs the question in deciding whether the road is a public or private road by reference to public usage or public right of access as the provisions of these Acts only apply to public roads.

Legal authority

Fortunately, there is further legal authority to support the interpretation that gated estate roads are private roads.

In the case of S v Christodoulou 1967 (3) SA 269 (N) Harcourt J had to consider whether a parking area, which was on privately owned property and used by the customers of two businesses, was a public road within the meaning of the Road Traffic Ordinance 21 of 1966. The court assumed that these customers were members of the public. The court observed that because this particular parking area was on private land, it could be closed at any time. The court was, therefore, reluctant to hold that it was a public road. The reluctance stemmed from the fact that the court felt that this would give rise to some serious anomalies. These anomalies are described by Harcourt J at pp 280 – 281 of his judgment. At that time gated estates were unheard of, but he did describe two anomalies with the same features as our present day gated estates, namely:

  • Farm roads along which commercial travellers and service personnel (eg, persons supervising electrical supply installations, receiving bulk milk supplies or making bulk petrol deliveries to tanks established on the farm) are required to travel to get to the farm yard.
  • A private residence with a driveway, which guests, tradesmen, salesmen, hawkers and delivery personnel travel to reach the house when visiting it for the householder’s purposes.

The court held that it would be wrong for the roads on these properties to be considered as included in the definition of a public road. The conclusion of the court, therefore, was that the legislator must have meant that a road is a public road when it is commonly used by the public ‘and’ a road to which the public has a right of access.

In the case S v Rabe 1973 (2) SA 305 (CPO) at 307G – H Corbett J disagreed with Harcourt J in the Christodoulou case. He ruled that the ‘or’ should remain in the definition of a public road (ie, a road which is commonly used by the public ‘or’ a road to which the public has a right of access). In his judgment he found that properly interpreted the definition does not give rise to the anomalies.

‘[I]t seems to me that the requirement that the place should be commonly used by the public, properly interpreted, does impose limitations which would tend to obviate most of the anomalies referred to in the judgment of Harcourt, J, in S v Christodoulou, … at pp 280-1.’

Likewise, in the case of S v Dillon 1983 (4) SA 877 (N) at p 881E – G Milne JP came to the same conclusion:

‘These anomalies, in my view, do not exist; either because, in the instances given by him [ie, Harcourt J], the definition would be held not to apply because the context would indicate otherwise (in which case, in terms of the definition, it does not apply), or because, on the particular facts, it could not be said that the use of the area in question was one which was properly described as a common use, or because it could not properly be said that it was an area commonly used by the public or section thereof.’

In other words, the mistake made by Harcourt J was not to properly consider the meaning of ‘use by the public’. There were no anomalies, because the people he identified as using the farm road or the private residence driveway, were not in that context ‘the public or a sector thereof’. Harcourt J decided that the parking area for customers was not a public road, because the people using it did not have a right of access. However, the correct reason for it not being a public road is that the parking area is used by the customers of the business.

The Christodoulou decision then becomes a classic example of correct result for the wrong reasons.

Road safety

In cases like Mount Edgecombe or, where a gated estate permits the public to use its roads, how does the management association police its roads? There are two possibilities, namely –

  • to persuade the local traffic enforcement authorities to send traffic officers into the estate in order to police the estate roads; or
  • the estate management association has to apply to the Minister of Transport or the local Member for the executive Council for a delegation of powers in terms of s 91 of the Act, with the particular objective of being empowered to appoint its own traffic officers.

In either case, the most appropriate comment seems to be: ‘good luck’.

The majority of owners are content with their homeowner association managing their roads and enforcing the rules. After all, self-regulation is one of the important reasons for buying a home in a gated estate in the first place.

Conclusion

Roads in gated estates are private roads and, therefore, do not fall under the regulatory framework of the Act. Where a homeowner association has allowed the public to use its roads, the solution is simple and instant. All that need be done is for the homeowner association to stop the public from using the roads then, under the Act, the roads are instantly no longer public roads.

Tim Pearce BA LLB (Rhodes) is an attorney at Pearce, du Toit & Moodie in Durban.

This article was first published in De Rebus in 2018 (Aug) DR 34.

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