Durban - Housing estates and gated communities cannot make their own traffic laws and put restrictions on when domestic workers could use the roads. Some of the estate rules were reminiscent of the apartheid era.
This was the finding by three KZN High Court judges on Friday when they ruled in favour of a Mount Edgecombe resident whose daughter was fined for speeding on the estate.
The judges ruled there cannot be “dual sytems” of law. Communities who were ignorant or arrogant were warned to mend their ways. The ruling has implications for communities across the country.
Describing it as a “poor judgment”, the president of the Association of Residential Communities Jeff Gilmour said they would challenge the judgment.
The estates maintain they have the right to decide how to govern themselves.
In a judgment delivered in the KZN High Court on Friday, Justices Seegobin, Chetty and Bezuidenhout ruled that Mount Edgecombe Country Club Estate resident Niemesh Singh, won his case against the estate’s management association, which fined his daughter for speeding on a road within the estate.
The incident happened in October 2013, and when Singh refused to pay the fine, access to the estate for him and his family was restricted.
Other rules that were challenged at the same time were contractors’ rules which restricted the right of an owner to appoint a contractor or service provider of their own choice, and domestic worker rules which imposed restrictions relating to their movements on the estate.
The judges said that while associations had the need to regulate traffic on and access to the public roads within the estate, such associations were obliged to seek the necessary permission from the transport MEC or the municipality concerned, which transport laws require. Other rules, such as the keeping of pets or what colour to paint a house on an estate, was governed by the contractual arrangement and not by law.
“It is common cause that the first respondent (Mount Edgecombe Country Club Estate Management Association) did not apply for such permission at any stage. I consider that this failure on the part of the first respondent must render such rules and the contractual arrangement with the members illegal,” said the judges, adding that since the roads within the estate were public roads, only the minister of transport or someone authorised by the minister, had the power to regulate any aspect of these roads.
The judges said there were dangers in a dual system, where one was contractual in terms of the contract signed when living in a gated estate, and the public law.
“This contractual arrangement requires a court to recognise and promote a regime of rules which have not been sanctioned by the authorities concerned,” said the judges.
Biting
Regarding the rules for domestic workers, the judges were biting in their criticism of the rules which stated that they must not walk on the estate unless a bus service transporting them to and from the entry gates was unavailable. Times that the domestic work could work on the estate were also regulated, and temporary domestic workers were required to leave their identity documents at the entrance and they were returned on exit.
The judges said of the domestic worker rules: “Domestic employees are simply not free to traverse the public roads in the estate save in the limited manner provided by the rules. From a constitutional point of view their rights in this regard are severely restricted.”
They said the estate management appeared to have “categorised them into a class of people who pose a security risk to people living on the estate”.
The judges also labelled the rules reminiscent of apartheid days and that the restrictive nature of the rules was an affront to their rights to human dignity and freedom of movement, among others.
In concluding remarks, the judges said: “Courts would be failing in their duties were they to overlook and/or condone flagrant and deliberate contraventions of statutory provisions. If in fact there are other associations and/or estates in the country, who, like the first respondent, either through ignorance or plain arrogance on their part, have seen it fit not to comply with statutory provisions, it’s time that they did.”
The Mount Edgecombe estate management has 12 months to obtain the necessary authorisations and consents from the transport department, and will have to pay the legal costs of the Singhs’ legal team.
Gilmour said they would challenge the judgment because it had implications for estates around the country. The association, of which Mount Edgecombe Country Golf Estate is a member, represents more than 300 associations around the country.
“In our view this is a poor judgment. The judgment infringes on the right of the managing committees to self-govern,” he said.
The Mount Edgecombe estate, while acknowledging a request for comment, did not get back to the paper at the time of going to press.