Most of us have witnessed the residents of golf estates haughtily careening around the internal roads on their golf carts. For long there were two conflicting schools of thought regarding this practice.
The first was that it is illegal in that it contravenes the relevant provisions of the National Road Traffic Act (the Act) which prohibits the driving of unlicensed/unroadworthy vehicles on public roads. The proponents of this idea proclaimed that the homeowner’s associations of estates that permitted this, either tacitly or expressly in their rules, were playing with fire and essentially usurping the regulatory function of the relevant authorities and legislature.
The second was that, despite what was generally popular opinion at the time, the internal roads of gated estates are not public roads and the driving of golf carts on them should, therefore, pose no problem.
The first school scored a direct hit when the KZN full bench appeal judgement was delivered in the case of Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh and Others. The court in this instance struck out certain rules of that estate (in particular those concerning the regulation of speed limits and the imposition of penalties on members caught speeding within the estate) on the basis that the internal roads are public roads, governed by the Act, and attempting to regulate speed limits etc would be an example of the homeowner’s association usurping the function of the relevant traffic authorities empowered by the Act. What is important to note here, was that despite much public misconception (causing great consternation amongst associations and cart owners alike) the court did not actually rule that the internal roads are public roads. After initially disputing it in the papers, counsel representing Mount Edgecombe went ahead and conceded this critical distinction and matter in issue. Accordingly, the court worked on the common cause premise that the internal roads of the estate are public roads and subject to the Act.
Fortunately for the second school, homeowner’s associations and cart riders everywhere, the judges of the Supreme Court of Appeal tackled this issue and recently handed down a judgement effectively overturning the decision of the full bench.
Their starting point was allowing Mt Edgecombe’s (no-doubt relieved) counsel to withdraw his prior concession on the basis that it was wrong in law.
The first section of the Act defines a public road as “any road, street or thoroughfare… to which the public or any section thereof has a right of access…” The very definition therefore automatically excludes most, if not all, gated/fenced estates where ingress and egress is strictly controlled, and the where the general public most certainly does not enjoy a right of access. This should settle that debate and these roads can be deemed private, which in turn means that driving a cart on them does not break any laws.
That issue aside, the court still considered the question of whether there was any conflict with the Act or usurpation of public power. It emphasized the fact that the enforceability of estate rules is founded in contract and applicable only to the parties to the contract. I.e. the homeowners who, before purchasing, freely and voluntarily agree to be bound by the rules. It cited two cases illustrating examples of such enforcement. The first dealt with the keeping of a Saint Bernard dog which violated the relevant rules regarding the size and breed of dogs allowed. The second was over an unapproved paint colour. In both instances, the rules were upheld by the courts. The Saint Bernard sent packing in the first, and the owner ordered to repaint his house in the second.
Self-evidently, the sum of the reciprocal rights and obligations of homeowners derives solely from contract. As such, and importantly, these rules are not enforceable against the public at large whose statutory obligations are only enforceable by the relevant authorities. So, no usurpation there! The court similarly found that the mere fact that the rules provide additional contractual requirements for the operation of vehicles on those roads, for example, does not mean that the rules themselves have a public law content. Nor does the enforcement of those contractual obligations involve the usurpation of public power.
So, for prospective golf estate dwellers, there are two lessons to take out of this.
Firstly, the relevant rules can and will be enforced, so familiarise yourself upfront and, if you can’t live with them, live elsewhere!
Secondly, for all your travel needs within the confines of the estate, buy a cart!
Contributor: MICHAEL JAMES BROWNING (Managing Director)
Tel: 033 341 9100
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