GATED COMMUNITIES – do the “rules of the road” apply?

“Is there no end to the greed of this regime? I built and paid for the road, it is mine not the Government’s. Any traffic officer attempting to fine any user on my road will be charged with trespassing.”

The quote above is to be found on the Web and was written in response to an article posted recently by Arrive Alive.

Does the statement have any legal merit?

If you have lived in South Africa for any length of time, you will be aware of the vast number of residential and business developments which have sprung up over the last 20 to 30 years. These include simplex and duplex-type complexes, residential estates, business parks, retirement complexes, estates incorporating golf courses and the like.

As a matter of course, gated estates share in common is that they are surrounded by walls or fences and that they encompass as part of the common property, a system of roads, driveways, loading areas and parking areas.

A common misconception often shared by developers, homeowners’ associations and bodies corporate is that the “Rules of the Road” – in our country’s case, the provisions of the National Road Traffic Act (NRTA) – do not apply to gated estates.

The correct position is that all roads within gated estates, almost without exception, are “public roads”. So, for example, one may not permit one’s child, if he or she, does not have a driver’s license, to borrow the family car (or indeed the family golf cart) to pop up to the communal swimming pool of an afternoon. To do so would amount to a criminal offence on the part of both the driver and the owner of the vehicle.

The same considerations apply to speeding, driving under the influence of alcohol or drugs, road signage, traffic calming measures and the like. In other words, the control of and use of vehicles on these roads is no different from the public roads outside of a gated estate. So too, all road signage, road markings and the positioning of road markings must comply with the NRTA. Those pretty little green and white one’s won’t do!

Going further, whilst a homeowner within a gated estate can be contractually obliged by the homeowners’ association or other body governing the estate to comply with the estate’s rules relating to the roads, the homeowners’ association may not usurp the function of the traffic authorities by claiming to have the right to carry out traffic control and law enforcement unless they comply with the NRTA. Persons enforcing the law need to be properly authorised to do so in terms of the NRTA and the Criminal Procedure Act.

It seems clear and logical that even if one were to ignore the legal provisions referred to above, there can surely be no basis in any system of communal living upon which a breach of the law can be permitted or condoned? So, to contend that the laws of the land do not apply simply because one has entered a gated estate, is, with respect to the person quoted above, clearly nonsense. To allow your child to take friends up to the pool in your golf cart may be the worst parenting decision you ever make.

Developers and bodies who are chosen to govern the conduct of residents and occupiers of any gated estate, who believe they are entitled to take the law into their own hands, hold such belief at their peril.

Article by Pat Dewes