Gated estates can enforce speed limits within the gated community

August 1st, 2019
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Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh and Others (SCA) (unreported case no 323/2018, 28-3-2019) (Ponnan JA (Salduker, Swain and Schippers JJA and Rogers AJA concurring))

The Supreme Court of Appeal (SCA) had to look at a matter on whether the impugned conduct rules relating to the speed limit within the Mount Edgecombe Country Club Estate were unlawful and invalid with regard being had to the National Road Traffic Act 93 of 1996 (the NRTA), in the case of Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh and Others (SCA) (unreported case no 323/2018, 28-3-2019) (Ponnan JA (Salduker, Swain and Schippers JJA and Rogers AJA concurring)).

Property owners of the Mount Edgecombe Country Club Estate are – according to the Memorandum of Incorporation – obliged to be part of the estate’s Management Association. The directors of the Association determined that the speed limit on all of the roads within the estate shall be 40 km/h. During October 2013, the daughter of the first respondent was issued with three contravention notices for exceeding that limit. The Association imposed financial penalties for these contraventions, which amounts were deemed to be part of the levy due by the owner and were debited to the first respondent’s account.

The first respondent refused to pay, consequently the Association deactivated the access cards and biometric access of the first respondent and members of his household. The respondents approached the KwaZulu-Natal Division of the High Court in Pietermaritzburg (KZP) for urgent spoliatory relief.  The court directed the Association to re-activate the first respondents access cards and the biometric access of his family. The Association appealed in respect of the road rules.

The counsel for the Association accepted that ‘“the roads in question are public roads for the purposes of the NRTA”. Accordingly, the Full Court analysed the roads challenge on the basis and assumption that the roads in question were public roads and subject to the [NRTA]. Before [the SCA] it was contended that the concession “appears to have been erroneously made … .” …
[T]his court is not bound by a legal concession if it considers the concession to be wrong in law’ and that the withdrawal of the concession can cause the respondents no prejudice. The court held that, after applying the definition of public roads in the NRTA and citing various cases, that the roads within the estate were private roads.

The SCA further held that even on the assumption that the roads within the estate were public roads, the approach of the Full Court could not be supported. According to the SCA, the relationship between the Association and the respondent was contractual in nature and 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. Therefore, the control of the speed limit within the estate fell squarely within the provisions of the contract concluded between the Association and the owners of the properties within the estate.

Once it was accepted that the rules were private ones, the respondents’ arguments that the Association was usurping the functions of the recognised authorities or contravening the provisions of the NRTA could not be sustained. The SCA concluded that contractually binding regulations are enforceable by the parties to the contract, and against them only. There is, therefore, no conflict between the NRTA and the contract and the rules of the Association, agreed privately. With notice to its members and by their agreement, the Association, for good reason, chose to impose a consensual limit of 40 km/h.

The SCA said that left untouched the limit of 60 km/h. In that, the mischief sought to be addressed by the NRTA was achieved, inasmuch as 40 km/h is less than 60 km/h. Accordingly, the Full Court ought to have found that approval under the NRTA for purposes of contractual self-regulation, was not required. There was no warrant for the finding by the Full Court that the Association had to first seek and obtain the requisite permission of the Member of the Executive Council of the local municipality. The SCA upheld an appeal against a judgment and order of the Full Court of the KZP declaring certain conduct rules of the appellant, the Mount Edgecombe Country Club Estate Management Association, invalid. The SCA accordingly upheld the appeal as follows:

‘1. The appeal is upheld with costs, including those consequent upon the employment of two counsel, to be paid by the respondents jointly and severally.

2. The order of the Full Court is set aside, and in its stead is substituted the following:

“(a) Save for declaring Conduct Rules 9.3.2, 9.4.1 and 9.4.3 of the Mount Edgecombe Country Club Estate Two unlawful, the appeal is otherwise dismissed.

(b) The appellants shall, jointly and severally, pay 80% of the respondent’s costs, including those of two counsel.”’

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2019 (Aug) DR 29.