Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh & others (323/2018) [2019] ZASCA 30 (28 March 2019)
Today the Supreme Court of Appeal (SCA) upheld an appeal against a judgment and order of the full court of the KwaZulu-Natal Division of the High Court, Pietermaritzburg declaring certain conduct rules of the appellant, the Mount Edgecombe Country Club Estate Management Association, invalid. The main issue on appeal was whether the impugned conduct rules relating to the speed limit within the Mount Edgecombe Country Club Estate (the estate) were unlawful and invalid regard being had to the National Road Traffic Act 93 of 1996 (the Act).
The appellant is an Association of the property owners within the estate. The owners are obliged to be part of the Association. The directors of the Association determined that the speed limit on all of the roads within the estate shall be 40 km/h. During October 2013, the daughter of the first respondent was issued with three contravention notices for exceeding that limit. The Association imposed financial penalties for these contraventions, which amounts were deemed to be part of the levy due by the owner and were debited to the first respondent’s account.
The first respondent refused to pay, consequently the Association deactivated the access cards and biometric access of the first respondent and members of his household. The respondents succeeded in approaching the high court for a spoliation order reactivating the first respondents’ access to the estate. They, however, failed in their challenge to three categories of conduct rules, namely the domestic worker rules, the contractor rules and the road rules. The respondents appealed to the full court against the dismissal of the application. Before the full court the respondents effectively abandoned the challenge to the contractor rules. The appeal succeeded before Seegobin J (Chetty and Bezuidenhout JJ concurring) in respect of the road and domestic rules.
Thereafter, with special leave, the Association appealed solely in respect of the road rules.
In the courts below counsel for the Association accepted that ‘the roads in question are public roads for the purposes of the NRTA’. Accordingly, the full court analysed the roads challenge on the basis and assumption that the roads in question were public roads and subject to the Act. Before the SCA it was contended that the concession ‘appears to have erroneously been made, and the appellant will seek to withdraw it.’ The SCA held that ‘it is trite that this court is not bound by a legal concession if it considers the concession to be wrong in law’ and that the withdrawal of the concession can cause the respondents no prejudice. It held, after applying the definition of public roads in the Act and citing various cases, that the roads within the estate were private roads.
The court further held that even on the assumption that the roads within the estate were public roads, the approach of the full court could not be supported. According to the SCA, the relationship between the Association and the respondents was contractual in nature and the conduct rules, and the restrictions imposed by them, are private ones, entered into voluntarily when an owner elects to buy property within the estate. Therefore, the control of the speed limit within the estate fell squarely within the provisions of the contract concluded between the Association and the owners of the properties within the estate. And, once it is accepted that the rules are private ones, the respondents’ argument that the Association is usurping the functions of the recognised authorities or contravening the provisions of the Act cannot be sustained.
The SCA concluded that contractually binding regulations are enforceable by the parties to the contract, and against them only. There is therefore no conflict between the Act and the rules of the Association, agreed to privately. With notice to its members and by their agreement, the Association, for good reason, chose to impose a consensual limit of 40 km/h. That left untouched the limit of 60 km/h. In that, the mischief sought to be addressed by the Act was achieved, inasmuch as 40 is less than 60 km/h. Accordingly, the full court ought to have found that approval under the Act for purposes of contractual self-regulation, was not required. There was thus no warrant for the finding by the full court that the Association had to first seek and obtain the requisite permission of the MEC or the local municipality. The SCA accordingly upheld the appeal.