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Jaime-Lee Gardner
072 171 1979

Louise Martin
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Rules are rules… or are they?

By Association of Residential Communities (ARC)

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Rules are rules… or are they?

By Association of Residential Communities (ARC)

, |

4 min read

How important are estate rules, and can they really be enforced? This question is at the heart of a recent legal wrangle between Mount Edgecombe Country Club Estate Management Association II and a resident.

As HOAs, we regularly draw up regulations pertaining to many aspects of living on an estate – from what colour you can paint your garage door to how late you can play music, and at what volume. Of course regulations, by their very nature, are restrictive. So, while most residents are willing to abide by them, some individuals may feel that the restrictions placed on them by these regulations are excessive, unnecessary or arbitrary, so they choose not to comply. This causes conflict, which can become toxic, and may even end up in long, expensive legal proceedings. This is what happened at Mount Edgecombe.

Speed limits

The speed limit on all roads within Mount Edgecombe is 40km/h. This is – according to the estate rules – to protect, among others, children and both wild and domestic animals. In October 2013, the daughter of a resident was clocked driving in excess of 60km/h three times, and fined R1,500 for each transgression. One of the charges was withdrawn by the HOA but they debited the resident’s levy account with R3,000 for the other two.

He refused to pay. In consequence, the HOA threatened to suspend his automatic access privileges so, in order to access the estate, he would be required to stop and sign in manually before being granted access to the estate. This did not go down well, and he instituted legal proceedings to have his access privileges reinstated and to challenge certain specified HOA rules, including certain of its road and domestic worker rules. The ensuing legal wrangling – which has been ongoing since 2014 – has been focused around:

  • the lawfulness of certain of the road rules as laid down by the HOA
  • the right of the HOA to police the road network within the Mount Edgecombe Country Club Estate
  • the issuing of penalties for speeding and/or otherwise contravening the law governing the control of traffic on public roads.

The verdict

It was a long and painful process. When the issue first went to court, the judge ruled in favour of the HOA and upheld the rules that were challenged, but the Full Bench of the KwaZulu-Natal High Court set aside the decision on the road and domestic worker rules on appeal. The declaration of invalidity of the road rules was, however, suspended for a period of 12 months to afford the HOA an opportunity to obtain the necessary authorisations and/or consents under the National Road Traffic Act, 93 of 1998.

The appeal

However, MECCEMA II chose to appeal, and the Supreme Court of Appeal decided that the estate’s internal roads are not public roads. As stated in paragraph 17 of the judgement:

‘While it is correct that some members of the public (or persons other than those residing in the estate) are permitted to enter the estate, there is no right on the part of the general public or any section thereof to traverse the roads. This has been the historical position since the estate was first established.

The non-owners who are permitted to enter the estate are persons who are there with the authority and permission of the owners, and are not to be regarded as forming part of the “public” for the purposes of the definition of “public road”.’

In summary, the Supreme Court of Appeal found that:

  • in regulating the roads, the homeowners association was not usurping the functions reserved to the authorities under the National Road Traffic Act nor contravening the provisions of that Act
  • there is no conflict between the road rules and the National Road Traffic Act
  • the rules are contractually binding on members, and are enforceable against them
  • the fact that the rules provide additional contractual requirements for the operation of vehicles on the roads in the estate does not mean that the rules have a public law content
  • there is no need for the homeowners association to seek authority from the MEC or the local municipality to regulate the conduct on the estate’s road network.

So the appeal succeeded, and the Supreme Court of Appeal set aside the order of the Full Bench. This judgement represents a victory for the right of homeowners associations to regulate the conduct of members through a system of rules, and reaffirms that the relationship between an HOA and its members is founded in contract.

That having been said, HOAs must still ensure that their rules are lawful, and must satisfactorily regulate conduct including, but not limited to, conduct on their internal road networks. The judgement vindicates HOAs in their endeavours to create estates in which all residents abide by lawful and reasonable rules.

And now …
The respondents have applied for leave to appeal to the Constitutional Court.

On Wednesday 29th May 2019, the Constitutional Court of South Africa issued an order dismissing the appeal by the respondents against the Supreme Court of Appeal’s judgement handed down on 28 March 2019. The court further awarded costs to Meccema II.

The Board and management of Meccema II are satisfied with the outcome and maintain their stance that the enforcement of the rules of the estate was correct and is in the best interests of all the residents living on the estate.

“This has been a time consuming and costly matter, however the safety and well being of our residents and their children has always been our prime focus,” said Jenny Etchells the Chairman of Meccema II.

“With the recent reinforcement of the verdict by the Constitutional Court of South Africa – we are not only glad to be recovering costs from this long drawn out case; but are also looking forward to finally putting this matter behind us so we can focus our time and resources on other positive projects that will enhance the safety and lifestyle offering of this premiere golfing estate,” statedDesiree Stone, CEO.

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1 Comment
  • Brenda
    Posted at 13:10h, 07 Jun Reply

    So very thankful that the case went the way it did and we residentsm children, animals and wildlife are safe again. Now we need to address the matter of visitors entering the estate and driving like raving lunatics. We have had a fine because a courier was caught speeding whilst delivering goods to our home. Fortunately my husband’s like a dog with a bone and didn’t let the matter drop. He paid the fine of course and then went to the CEO of the courier company – we were reimbursed the fine from them. Visitors and contractors don’t appear to pay attention to the 40kph notice at the security gate………

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