A reader who lives in a gated community wants to know if the governing body has the authority to lay down the speed limit for roads within the estate.
She has had a number of confrontations as a result of her exceeding the prescribed limit.
In a recent judgment, which addresses a governing body’s authority to prescribe a speed limit within an estate, she questions the basis on which that governing body was permitted to set the limit and whether her estate has the same authority.
The matter in question is a Supreme Court of Appeal judgment.
See the reader’s question here.
The Home Owners Association (HOA) took the form of a non-profit company and its rules were contained in the memorandum of incorporation (MOI) of the company.
All owners within the estate were required to be members of the HOA and thus contractually subscribed to accept its rules.
In that instance, the HOA prescribed a speed limit of 40km/h within the estate.
The resident exceeded the 40km/h limitation by driving at speeds of between 60km/h and 70km/h on separate occasions.
In accordance with the provisions of the MOI, the HOA is permitted to impose a reasonable financial penalty as a result of a transgression of the speed limit.
The resident refused to pay the fine and, as a result, the HOA deactivated the biometric access cards used by the resident at and around the estate.
The matter escalated and became litigious as a result.
It was noted that the roads within the estate were, from its inception, private roads and that never changed.
This means the roads did not fall within the definition of a public road as set out in the National Road Traffic Act.
It was also noted that the public does not have access to the roads in the estate as entry is controlled.
Third-party contravention of the rules would be settled between the HOA and the member because the member is contractually bound to ensure compliance of the rules by his visitors.
The court did not find the speed limit imposed by the HOA – 40km/h in contrast with the national 60km/h – to be problematic.
The lower limit was reasonably justified due to children playing within the estate, the use of golf carts and the eco-friendly approach which resulted in small animals running freely within the estate.
The court confirmed that the parties’ respective rights and obligations lay in the law of contract and that the statutory obligations, as generally applicable to the public, were not applicable in this scenario.
It further stated that the HOA did not require external consent to reduce the speed limit within the estate.
The reader would have to establish whether the salient factors of this case are similarly applicable to her estate.
In brief, the roads should not be of a public nature and the rules should be contractually applicable to her and the other residents for the governing body to be able to issue fines for speeding.
Ask the YourProperty experts a question here.