The irony of Homeowners’ Associations using members’ money to litigate against them.
One of the factors that will play a role in the seriousness of a crash is that of the speed at which a vehicle is driving when it collides with another object. This has given rise to the profoundly over-used slogan “speed kills” which has been used by government to justify its almost sole focus on speed when enforcing road traffic laws. Government is not alone.
For ages now, private estates have focussed on the speed at which vehicles are driven in their boundaries and as a result, there’s been a battle of wills going on surrounding the perceived right of Homeowners’ Associations to enforce their own “rules” and what is prescribed in nationally applicable public law, and indeed, in common law.
HOA rules inconsistent with NRTA
The standpoint of many HOAs is that they are entitled to introduce rules which are wholly inconsistent with the National Road Traffic Act, No. 93 of 1996 (NRTA) because the roads within their estates are “private roads”, while the definition of a “public road” contained in the NRTA clearly disputes this.
For those who don’t know what the definition of a “public road” is, here is that definition:
“public road” means any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access, and includes—
(a) the verge of any such road, street or thoroughfare;
(b) any bridge, ferry or drift traversed by any such road, street or thoroughfare; and
(c) any other work or object forming part of or connected with or belonging to such road, street or thoroughfare” (my emphasis).
There’s a very good reason why I have emboldened the relevant text, and that reason is that there are, as far as I am aware, no estates in South Africa which don’t commonly allow members of the public to use “their” roads.
Who develops and maintains a road has little or nothing to do with whether a road is deemed by law to be a “public road”. On the contrary what makes a road a public road begins and ends with who has the right to use that road.
Even family members who live with members of HOAs are, in reality, members of the public. This further extends to pedestrians, contractors and even emergency services that enter these estates from time to time and therefore, the roads in all estates are, by legal definition, public roads.
Section 9(1) of the Constitution holds that “everyone is equal before the law and has the right to equal protection and benefit of the law” (emphasis added).
I am sure that I need not tell you that estates like to impose speed limits and erect road traffic signs depicting those speed limits on “their” roads. I am equally sure that I need not tell you that many estates then run off and purchase speed measuring equipment which is either automated entirely or handed to security guards/officers to enforce those speed limits – by issuing “speeding” fines.
HOAs and security guards breaking the law and violating the Constitution
This is deeply problematic because not only does the NRTA not grant the authority to anyone who is not specifically authorised to erect road traffic signs to do so, but it also makes it a serious criminal offence for anyone other than an “authorised officer” to issue a fine. Security officers are NOT “traffic officers” and Homeowners’ Associations are NOT local authorities.
I could go on for ages, speaking of how even the road traffic signs, road markings, etc. I have seen in some estates don’t even comply with the South African Road Traffic Signs Manual (SARTM), but I won’t. I also find myself having to point out that traffic officers have to undergo 3 years training and pass a comprehensive exam before they are let loose on the public. Security guards/officers on the other hand undergo training of a few months training at best and none of it even contemplates the NRTA. They also undergo a few hours training to operate speed measuring equipment.
If you examine the so-called “road rules” applicable to your estate, you will find that they do not incorporate the vast majority of road traffic offences that are created by the NRTA and its Regulations. In fact, in many cases, they only contemplate “speeding” while turning a blind eye to such serious criminal offences as driving under the influence of alcohol or drugs (DUI). Where they do contemplate DUI, they generally only impose fines or state that the authorities will be called.
It’s appalling that no-one is entitled to a trial in an ordinary Court under HOA rules. If the HOA says you are guilty – you are guilty and have to “appeal” their fines to a committee – generally comprised of individuals who know little or nothing about road traffic law. Similarly, it’s simply untenable that DUI is treated with such a blasé attitude when an intoxicated driver presents a clear and present danger to all other road users.
Just as any person has the constitutional right to a fair trial before an ordinary Court if they stand accused of any offence, including but not limited to a road traffic offence, so do other road users have the constitutional right to benefit from proper road traffic law enforcement. In any event, traffic fines simply don’t have the effect of deterring people who can afford to pay them, from committing any road traffic offences – including “speeding”.
“Lawfare” against so-called “detractors”
I greatly admire people like David Gregory who took Midstream Estate to the Community Schemes Ombud Service (CSOS) when they issued him with so-called “speeding” fines occasioned by the alleged driving of his wife and son in the estate at speeds exceeding those in their rules. Midstream chose to appeal CSOS’ ruling in the High Court and in so doing, is dragging Gregory, as the person who approached CSOS for a “ruling”, through a tedious and expensive litigation process.
Mount Edgecombe Country Club Estate Management Association (MECCEMA) is similarly dragging Niemesh Singh through the Courts, after a full Court at KwaZulu-Natal ruled against MECCEMA. That matter is due to come before the Supreme Court of Appeals on 5 March 2019 and Singh has more than enough money to fight them all the way to the Constitutional Court, should that be necessary. I know for a fact that he will do so if necessary – and rightly so.
Having seen all the legal papers surrounding these two matters, I will wager that neither Midstream nor MECCEMA hold a reasonable prospect of success in their quest to circumvent the Constitution and other public law.
The Courts have tired of government officials using the public purse to wage “lawfare” and have started issuing personal cost orders against the individuals who have done so.
It is my sincere hope that the Courts will come down on these HOAs like a tonne of bricks and in so doing, bring an end to the “lawfare” HOAs like to wage on their members, wasting the HOAs’ money – which is essentially the members’ money, in the process.
Spend money on effective measures – not revenue generation tools
In my view, the money used investing in speed measuring equipment to occasionally generate revenues, and then engaging in “lawfare” could be way better spent on installing immeasurably more effective, permanent road engineering measures to prevent speeding.
HOAs engaging in expensive and wasteful litigation in an effort to promote their lust for fine revenues must come to an end and road traffic law enforcement must be left to the professionals.
Cheryl Smith
January 21, 2019 at 5:47 pmIt is shocking how unfair members of the HOA are being treated . Clearly strict regulations need to be imposed on HOA directors to ensure better management