“These gated communities are popping up all over the country and while they certainly can boost security, a few issues have been cropping up – specifically referring to road usage,” says Bruce Swain, CEO of Leapfrog Property Group, “Many home owners’ associations, bodies corporate and developers alike seem to believe that the rules of the road (under the provisions of the National Road Traffic Act) do not apply to gated estates – they are wrong”.
While it’s certainly true that homeowners can be contractually obligated to adhere to the rules and regulations set up by the relevant HOA, almost all roads within gated communities are legally considered public roads – implying that all traffic infractions regarding driving without a license, speeding, driving under the influence and the like fall under NRTA rules.
“A number of cases where home owners’ associations have tried to fine speeding residents have been published in the media. The issue here is that these HOA’s have no legal right to enforce traffic laws or to punish transgressors,” explains Swain.
The Pietermaritzburg High Court recently ruled in a case between a Mr Singh and the Mount Edgecombe Country Club Estate Management Association. The Association had issued speeding fines to Mr Singh’s daughter, which he refused to pay. The Association then suspended the family’s access along the roads to their home. The presiding judge found that while the Association needs to regulate traffic on the estate, they need to obtain permission from the relevant authorities. "It is common cause that the first respondent (the 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.”
According to the court only the Minister of Transport or his authorised delegate has the power to regulate public roads. Without the Minister’s permission, the Association did not have the authority to levy fines.
“What residents in these communities also need to consider is that because these roads are still considered public, not only can’t body corporate road rules be enforced without the requisite permission, allowing a teenager without a license to drive even a golf cart to the pool house is also actually illegal,” explains Swain.
Swain advises regulatory bodies within estates, as well as residents to adhere to the rules of the road as defined by NRTA and to abide by same for enforcing any infractions.