Durban - Streets in gated estates are not “public” and fines can therefore be imposed on those who fail to adhere to the rules of private roads.
That was the ruling made by the Supreme Court of Appeal this week in favour of the Mount Edgecombe Country Club Estate Management Association II.
The decision means that the association, the appellant in the matter, can continue to police the roads within its boundaries.
Niemesh Singh, a resident at the estate for more than 15 years, challenged the association’s 40kmph speed limit with court action in 2014.
His daughter was trapped on three occasions, allegedly driving beyond the limit (69km per hour, 65kmph and 67kmph) on each occasion.
The Durban High Court had ruled in favour of the association regarding the road rules, but Singh took that decision on appeal to the Pietermaritzburg High Court in 2017 and won.
However, the ruling was overturned this week.
Desiree Stone, chief executive of the Mount Edgecombe Country Club Estates, welcomed the U-turn judgment made by the Appeal Court in Bloemfontein on Thursday.
She said the decision affirmed the right of the homeowners association to make rules regulating conduct within estates.
“We believe the enforcement of the rules of our estate are correct and are in the best interests of the residents living on the estate,” said Stone.
But Singh’s attorney Sivi Pather of law firm Pather and Pather Attorneys, said his client was “definitely” considering challenging the ruling in the Constitutional Court.
“There are some very concerning constitutional issues that emerge from the judgment and we are taking the decision under advice from Mr Singh’s wider legal team, to consider the merits of an appeal to the Constitutional Court,” said Pather.
The matter between Singh and the association deadlocked when he refused to pay the fines that his daughter accrued, and the association maintained he should “pay first and argue later”.
This resulted in the association blocking his and his household’s access to the estate.
He not only lodged a High Court application to regain entry into the complex, but also challenged the association’s road, contractor and domestic worker rules.
Singh was against the association policing roads on the estate and issuing fines.
He also wanted the courts to enforce that residents had the freedom of choice when selecting contractors and service providers to work at their homes.
He moved that the “repressive” laws governing the movement of domestic workers at the estate be scrapped.
After the unsuccessful Durban High Court bids, Singh abandoned the contractor rules application when he pursued the matter at the Pietermaritzburg High Court.
The crux of Singh’s argument over the road rules was that the association failed to comply with the National Road Traffic Act prerequisites in policing its roads.
Another Mount Edgecombe resident, Munshurai Ramandh, joined the matter as a co-applicant because he had encountered an issue with his domestic assistant traversing the estate.
When the association lodged its appeal against the previous court decision, it related only to the road rules. Previously, the association accepted that its roads were public, but in Bloemfontein, its argued that its roads were private, which was accepted by the court.
In handing the decision, Appeal Court Judge Visvananthan Ponnan said the general public did not have access to roads within an estate.
“The estate is a private township,” said Judge Ponnan.
Therefore, the association was not “usurping the functions of recognised authorities” by imposing a system of penalties for transgressions of road rules, which was not unlawful.
“When respondents choose to purchase a property within the estate and become members of the association, they become bound by its rules.”
Judge Ponnan said the relationship between the association and the residents was contractual by nature and the conduct rules and restrictions imposed were private and entered into “voluntarily”.