Rules governing a scheme may determine speed limits and fines on private roads in a Home Owners Association

The Mount Edgecombe Country Club is a community scheme comprising some 890 Freehold and Sectional Title residential units. In terms of the Association’s Memorandum of Incorporation (MOI), membership of the Association is obligatory for all owners of residential property within the Estate.

The Directors of the Association, in terms of their powers set out in the MOI, decided that the speed limit on the roads within the Estate would be 40km/h, which decision was concretised in the body of the document.

Now, I can attest to the fact that one of the comments I receive from owners in the audience at the many training sessions I have conducted around the country is as follows: “Our rules say so and so, therefore that is the law in our scheme.” My answer is ever-constant:  the content of the rules of a scheme is not cast in stone. It is easy to make up rules and get them passed. The fact is, if those rules are unconstitutional, illegal or anti-competitive, they can be struck out by a court.

More recently, the Community Schemes Ombud Act gives the power to an adjudicator appointed by the Community Schemes Ombud Service (CSOS) to give an order declaring that the rules, having regard to the interests of all owners and occupiers in the scheme, are unreasonable or invalid and must be removed or amended.

Speed trapping IS allowed in estates (Round 1)

Back to the Mount Edgecombe case. The daughter of an owner, Mr Singh, contravened the 40km/h speed limit on three occasions, clocking 69,65 and 67km/h respectively. Penalties were levied upon Mr Singh and he approached the Kwazulu-Natal High Court in Durban to declare the rules in the Estate unlawful. He alleged that the Association had no right at all to police the road network within the estate, which policing included issuing of speeding fines. The matter of the rules regarding domestic workers was also challenged, however, that rule is not the focus of this article. The court dismissed Mr Singh’s application regarding the unlawfulness of the rules.

Speed trapping NOT allowed in estates (Round 2)

Mr Singh was not prepared to leave it there. He then took the matter on appeal to the Pietermaritzburg High Court, where a full court declared that the rules were invalid, reasoning that imposing speed limits, erecting traffic signs and installing speed bumps was actually usurping the functions reserved exclusively for the authorities under the National Road Traffic Act.  In plain English, Mr Singh prevailed, and no penalties could be issued as the 40km/h rule could not be applied.

Speed trapping IS allowed in estates (Round 3)

The Mount Edgecombe Country Club Estate Management Association were having none of this and approached The Supreme Court of Appeal of South Africa, situated in Bloemfontein. The long-awaited judgement came out at the end of March 2019. The Judge of Appeal stated firmly that the roads within the estate are not public roads – the estate is enclosed by a two-metre-high palisade fence, topped with electrified security wiring. The general public does not have access to the roads within the estate. On top of this, the Judge submitted that in his view the relationship between the Homeowners’ Association and owners was contractual in nature, and any owner agreed to be bound by its rules. Therefore, the Homeowners’ Association was well within its rights to make and enforce the speed limit rule.

Battle over whether estates are allowed to issue speeding fines may not be over yet (Round 4?)

The CSOS has been watching this case carefully, albeit like watching a tennis match, going backwards and forwards to no less than three Courts. I wouldn’t be too quick, though, to think that the matter is over, or to amend the rules of my scheme – word has it that that Mr Singh’s optimistic attorney will be aiming  to have the matter heard at the Constitutional Court, which is the last port of call on the litigation journey.  Sounds like both sides will have to be firing on full cylinders for the final battle.

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