Rules of the road in gated communities

Gated communities are increasingly popular with home buyers due to the perceived safety these neighbourhoods offer.

“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 when it comes to road usage,” says Bruce Swain, chief executive of Leapfrog Property Group.

“Many home owners’ associations (HOAs), bodies corporate and developers seem to believe that the rules of the road under the provisions of the National Road Traffic Act don’t apply to gated estates, but they are wrong.”

He says it’s certainly true that homeowners can be contractually obligated to adhere to the rules and regulations set up by the relevant HOA. However, almost all roads in gated communities are legally considered public roads – implying that all traffic infractions regarding driving without a licence, speeding, driving under the influence and the like fall under NRTA rules.

“A number of cases where HOAs have tried to fine speeding residents have been published in the media. The issue here is that these HOAs 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 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, it needs 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.

“Residents in these communities also need to consider 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 licence 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 these rules for enforcing any infractions.