The popularity of golf carts has risen dramatically in recent times, with golf carts now being used beyond golf courses and having become a popular mode of transport at sporting events and in and around hospitals, businesses, airports and resorts, to name but a few alternative uses. The use of golf carts as a convenient means of travelling within secure residential estates and retirement communities has also grown, and the question regularly posed is how to effectively control and manage the use thereof, particularly by teenagers and adolescents who cannot yet drive motor vehicles and regard golf carts as a convenient alternative means of getting around.
More often than not the rules of an estate will regulate to some extent whether golf cart usage is restricted to golf course areas or designated golf cart paths; however, there are also many estates without designated golf cart paths and, as anyone living or working in an estate, and particularly the homeowners’ associations charged with administering the conduct of persons within estates, knows all too well, the rules in terms of which conduct is regulated are themselves often a source of conflict and at times much confusion.
Is the use of golf carts on internal estate roads permissable, and to what extent may a homeowners’ association regulate golf cart usage within an estate? These questions are not simple to answer and much turns on the status of internal estate roads and whether they are governed by the provisions of the National Road Traffic Act, 93 of 1996 (‘the NRTA’), which regulates the type of vehicles that may be driven and general conduct on roads that are deemed to be ‘public roads’ in terms of the Act.
Issues surrounding the status of internal estate roads and the applicability of the NRTA rules were recently dealt with by the full bench of the KwaZulu-Natal High Court at Pietermaritzburg in the matter of Nimesh Singh and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and Others, Case Number AR575/2016 (the ‘Singh v Mount Edgecombe matter’) in a decision handed down on 17 November 2017.
Interms of the NRTA, it is only the Minister of Transport (the ‘Minister’) who may prescribe signs, signals and markings and otherwise control traffic on public roads, including the authorisation of speed limits and the categories of motor vehicles that may be driven on public roads. In terms of Regulation 5(1)(i) of the Regulations under the NRTA, motor vehicles designed exclusively for use on golf courses and which as such do not satisfy the design criteria for operation on public roads are exempt from registration under the NRTA and may not be driven on public roads as defined in the NRTA, save for crossing public roads at designated crossings. What constitutes a ‘public road’ in terms of the NRTA is very broad, and the NRTA defines a ‘public road’ as ‘any road, street or thoroughfare or any other place (whether a thoroughfare or not) to which the public or any section thereof has a right of access …’. In the Singh v Mount Edgecombe matter, the full bench of the High Court held that the estate’s internal roads were public roads despite being privately owned by the homeowners’ association, and that the relevant rules of the homeowners’ association regulating conduct on the estate roads were invalid, as no authority had been sought by the association to regulate the relevant conduct on the estate roads by the erection of the appropriate signage and approval of the relevant speed limits below the general speed limit of 60kmph applicable on public roads. Counsel for the homeowners’ association had argued that the relationship between the homeowners’ association and all owners within the estate was based on contract that was freely and voluntarily entered into, and that the rules of the estate operated as a parallel system to the statutory regime prescribed by the NRTA. Accordingly, the homeowners’ association did not ‘purport to utilise, invoke or usurp the powers under the NRTA’ and as such did ‘not consider it necessary to seek any authorisation in terms of the NRTA for the enforcement of its private rules’.
At the time of writing this article, the Supreme Court of Appeal had just granted the Mount Edgecombe Country Club Management Association Two (RF) NPC special leave to appeal the decision, and as such the issue of whether internal, privately owned estate roads fall within the ambit of the NRTA as deemed public roads or not remains very much a live issue, and until the Supreme Court of Appeal decides the appeal it seems there will remain two schools of thought on the issue – those who maintain that despite being privately owned the roads within an estate fall under the ambit of the authorities under the NRTA and that homeowners’ associations lack the authority to impose and apply road rules, and those who either maintain that the estate roads are not subject to the NRTA or that, even if they are, that this does not preclude a parallel contractual regime being enforced by homeowners’ associations, provided that the standards imposed by the homeowners’ association are not less onerous than those imposed under the NRTA.
If the roads within an estate are determined to fall within the ambit of the NRTA (this would include estates with municipally owned and controlled roads), then the driving of conventional golf carts, which are designed exclusively for use on golf courses and which do not comply with the design criteria of the NRTA for operation on a public road, should be restricted to golf courses or designated golf cart paths only. Any use beyond this would fall foul of the NRTA. If, however, the roads within an estate are determined to fall outside of the ambit of the NRTA, then homeowners’s associations will be free to regulate golf cart use as they see fit, applying sound road safety criteria.
Until the Supreme Court of Appeal pronounces on these issues, homeowners’ associations are well advised to ensure that none of their rules contravene the provisions of the NRTA and should only permit road-legal golf carts to be driven on the estate’s internal roads by licensed drivers. Road-legal golf carts are golf carts capable of being registered under the NRTA and that as such comply with the design criteria of the NRTA for lawful operation on public roads. Alternatively, estate management should endeavour to seek the appropriate permission or exemption from the relevant MEC to permit the use of conventional golf carts on internal estate roads. In addition, estate residents who drive conventional golf carts on internal estate roads or otherwise leave estate property and drive on external roads do so at risk and are well advised to seek appropriate legal advice. They should also determine from their short-term insurers whether they hold valid insurance cover for such conduct.
Lazelle Paola (Partner) Cox Yeats Attorneys, Umhlanga Ridge