A question posed to our offices this month was whether the roads and road users in Security Estates (“Estates” and under the control of a Home Owners Association (“HOA”) should comply with the regulations as stipulated in the National Road Traffic Act (hereinafter referred to as the NRTA). The question poses an interesting scenario as although the roads are maintained by the HOA, the duty to maintain these roads is derived from the Municipal structures. In essence we have a situation where the roads are viewed as either “private” in nature or “public” in nature. Once the classification of the roads has been established, one will be able to determine whether the NRTA is applicable or not.
In terms of the NRTA a “public road” is defined as any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access and includes the verge of such road, street or thoroughfare, any bridge, ferry or drift traversing such road, street or thoroughfare, or any other work or object forming part of or connected with or belonging to such road, street or thoroughfare. The High Courts of South Africa have found that the definition must be interpreted widely. The legislature’s intention was clearly to include all roads used by the public, even where there is no right of general entry and where permission to enter is required.
The implied conclusion of the court is thus that although entry is controlled through gated and other security measures, the roads are still excluded from the “private road” category. The practical effect is thus that these roads fall under the scope of the NRTA. The fact that permission to enter the premises is required, does not render the classification of these roads as “private”. Residents, service providers, property owners and pedestrians also have a right to access the estate and the protection as offered by the NRTA. The control of access is mainly incorporated for security purposes.
The possibility does, however, exist where a private driveway of an individual property on the estate, or common driveways may be classified as a private road. This is, however, excluded where the driveway forms part of the common property within the HOA.
One should not lose sight of the fact that an estate retains all the characteristics of an urban township and residential area. Most of these estates fall within the definition of an “urban area” under the NRTA. The NRTA defines an “urban area” as a portion of the area of jurisdiction of a local authority which has been subdivided into erven or is surrounded by surveyed erven.
What most of the members out there are thinking at this moment is indeed true. The rules pertaining to traffic and road usage within the HOA has to be in accordance with the provisions of the NRTA. Certain examples of the implications hereof are as follows:
Road signage does not comply with the regulations of the NRTA, due to its dimensions, shape and colour being incorrect. The speed limit within an urban area is 60km/h in terms of the NRTA. Now, when one looks at the abovementioned scenario pertaining to signage, the situation can exist where the speed limit in the Estate is reduced to 30km/h, but due to the signage not conforming to the regulations of the NRTA, the speed limit is ipso facto brought to urban speed limit of 60km/h. The transgressor will thus not be criminally liable for driving 45km/h, but may be liable to the HOA in terms of the contractual obligations (Rules of the HOA). The upside to the defective signage is that the Minister, the MEC or any person authorised by the Minister or MEC, or the relevant local authority may authorise the use of the defective signage.
“What happens in the event where the Estate’s signage conforms to the requirements of the NRTA?” you may ask. This is a very pretty scenario on paper, but if the estate management or private security service providers have not complied with the NRTA and have not been subsequently authorised to enforce the traffic regulations, the regulations would be unenforceable.
Another example is where the driving of unlicensed vehicles and presence of unlicensed drivers occur. The general rule is that if you are not permitted by law to drive a certain vehicle on a public road, then you are not permitted to drive that vehicle within the Estate. This has a far reaching effect on all the golf carts we see all too often in HOA’s. Most of the golf estates have special golf cart tracks which has no contravening effect towards the NRTA (unless they cross public roads). This, however, is not the end of the road for all the golf cart owning golfers. The use of golf carts on public roads may be approved and authorised by the MEC or local authority concerned.
When a transgression occurs, a “traffic fine” cannot be imposed by a private body like Homeowners Associations, unless the relevant person imposing the fine is authorised by law under the NRTA. The estate management can thus not impose a “traffic fine”, but it can fine a transgressor with a contractual penalty for violating a conduct rule. The fine will stand separate from the operation of the NRTA.
The controlling mechanisms that HOA’s put into place in terms of contractual arrangements with residents, their visitors and other road users as conduct rules cannot take on or replace the NRTA. These are internal contractual conduct measures and the law still applies as on any other public road. The powers and duties of the law enforcement authorities being responsible for traffic law enforcement under the NRTA remain absolute. The conduct rules pertaining to road usage should thus comply with the provisions of the NRTA and if special provisions need to be incorporated, these provisions have to be authorised by the authority authorised to do so.
Written by Luigi Gamberini
EY Stuart Attorneys