06 Dec

SPEEDING FINES IN GATED COMMUNITIES – ARE THEY LEGAL? – ATTENTION ALL TRUSTEES AND MEMBERS OF GATED COMMUNITIES (SECURITY ESTATES)

These facts are from a KZN High Court judgment that went on appeal.

Mr Singh lived on Mount Edgecombe Estate. By virtue of his ownership, he is obliged to be a member of the Estate which is governed by a non-profit Association, whose obligations and functions are in turn governed by a Memorandum of Incorporation. (Very much like a Home Owner’s Association which is governed by a Constitution). In 2013 his daughter was issued with three speeding fines. These fines were issued in accordance with conduct rules.

This resulted in a number of unpleasant consequences for Mr Singh and his family, when he failed to pay the fines! He then challenged the speed fine system on the basis that the Association was purporting to carry out the functions of traffic officers as defined in the National Road Traffic Act, 93 of 1996 (NRTA) on the roads within the estate, given that they are public roads. (It is established law that despite being within a fence and appearing to be ‘private’, such roads are in fact public roads, due to the definition thereof in the NRTA. As such they fall within the jurisdiction of the NRTA.

After analyzing certain portions of the NRTA; the Constitution of South Africa Act, and the Criminal Procedure Act 51 of 1977 (the CPA), the court held that only the Minister may decide on speeding limits; only the MEC may prescribe how speeding fine signage is to be made visible, and that only “peace officers”, as defined in the CPA, (which includes traffic officers as defined in the NRTA) are permitted to issue written notifications (fines) to a person caught speeding, because, this notice sets out the amount of the fine which a court is likely to impose upon him or her – and not a private body. (After all, by law, a speeding violation could even carry a prison sentence! Would it not be funny to see HOA’s trying to impose such a conduct rule! Why limit it to a fine?)

It is established law that the relationship between a home owner in such an estate, and the governing body, is regulated by law of contract – the contract in this case, being the MOI and conduct rules. On this basis, the Association argued that its power to control and direct traffic on the public roads is governed by its own rules and is not linked to any statutory provision. The problem which this argument faced is that the legislation which the court analysed, clearly states that private bodies who do wish to play “cops and robbers” are obliged to first seek and obtain permission from the authorities to enforce speeding limits and rules of the road, in the absence of having “peace officers” on their payroll.

In granting such permission the authorities concerned would be entitled to also impose such conditions as they may consider necessary in the circumstances.

It was common cause that the Association had in fact not applied for nor ever received such permission at any stage – and for this reason the court held that the conduct rules relating to the limitation of speed and the imposition of a fine, are illegal, until and unless consent was obtained by the Association, from the authorities. In this case the court however suspended the illegality for 12 months until the Association could obtain the required consents, and in order to not allow all the owners in the Estate to be tempted to suddenly become racing drivers!

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