Durban - A Durban property owner and the Mount Edgecombe Country Club Estate have locked horns in court over the estate’s “draconian” rules that allow it to issue speeding fines, restrict the movements of domestic workers and, it is claimed, dictate which building contractors residents use.
The matter came before Durban High Court Acting Judge Ian Topping on Friday. He was asked to suspend three sections in the estate’s rules for three months so that they can be addressed by the residents’ association.
Businessman Niemesh Singh, represented by advocate Kemp J Kemp SC and attorneys Pather and Pather, argued that the rules were not only unreasonable but unlawful.
Singh also challenged the estate’s rules pertaining to a list of “approved” building contractors, which he argued went against the Competition Act.
Kemp said his client accepted that the estate needed rules, but pleaded with the court to suspend those that did not find favour with the law.
“We do not want all the rules suspended… It is not an attempt to destroy the regime,” Kemp said.
Singh has lived on the estate, known for its pristine roads, perfectly manicured verges and lush golf course, for more than 10 years and owns four free-hold properties on it.
He brought the application before the court along with another resident at the estate, Munshurai Ramanadh, listed as the second applicant.
Kemp argued the estate should not be allowed to issue speeding fines to motorists driving in the estate as it did not have the authority under the Road Traffic Act.
The roads on the estate were public roads.
He said the rule was “problematic” as any residential association could, if it agreed, place speed enforcement restrictions on the public roads near their buildings.
He said that while the association - made up of all the owners of the estate - may have agreed to the speed enforcement measures, they had no standing if unlawful.
“(Speed regulations) can only be done under lawful authorities,” he said.
Kemp also argued the legality of the rules that restrict the access of domestic workers to the estate between 6am and 6pm and that they may only “walk on the estate between the residence where working that day and their gate of exit”.
Kemp also argued for the rule pertaining to the use of contractors to be reviewed as it was anti-competitive.
Advocate Andre Stokes SC, arguing on behalf of the estate, said the rules were lawful and binding.
He argued that the rules were a contract between the estate and the residents.
According to the heads of argument filed by the estate, one of the conditions of ownership of property within the estate is that an owner of a residential property be a member of the association and be bound by its rules.
“Accordingly, when the applicants chose to purchase property within the estate and become members of the association, they agreed to be bound by the association’s rules imposed by its directors and a contract came into existence between the association and the applicants,” the heads of argument read.
On the issue of validity of speeding fines, Stokes said the estate was “not pretending to be a traffic officer or enforcing it under the Road Traffic Act”.
He argued that there was nothing under legislation that prohibited them from enforcing traffic rules in the estate.
Topping asked if a traffic officer’s speed-trapping equipment stood on one side of the road and the estate’s on the other, which fine a resident would get.
“You would get both,” Stokes said.
“(The estate) is enforcing a contractual agreement. The police are the only ones who can enforce the law,” he said.
Regarding the movements of domestic workers, Stokes said they were allowed to walk on the estate but were encouraged to use the designated bus stops when travelling through the estate.
“It is permissible and they can walk through the estate,” he said.
On the issue of whether they were contravening the Competition Act by having a list of approved contractors, he said it did not stand as the estate was not competing for contracts.
He said the approved list was merely to provide a “community service” and that any contractor could work in the estate as long as it maintained the building standards and design requirements.
Judgment was reserved.
Daily News