A property kingpin from Mount Edgecombe housing estate in Durban recently lost his legal contest to overthrow what he refers to as “draconian rules” that involve speed limits, access for domestic workers and contractors.
The property tycoon who is a resident at the estate argued and stated that the roads within the estate were public property governed by the National Road Traffic Act. He said that the general speed limit would be 60km/h, not 40km/h as it is on the estate.
However the judge refused this submission, stating that the rules were private/internal and that there were placed for ensuring a lower speed limit within the gated community, taking into consideration, animals, pedestrians and children.
Rules for domestic workers and contractors similarly were prescribed to ensure, orderly ingress and egress of a number of people that work at the homes in the estate.
The judge noted, “Rules are there to regulate conduct between neighbours and as necessity, must be restrictive to take into account the cumulative rights of the use and enjoyment of the estate by all its residents.”
He added, “Rules might irk one’s individual sense of propriety and fairness because of their restrictive and regimented nature, they cannot be said to be contrary to public policy.”
The judgment embedded the rights for homeowner associations that are on gated estates to enforce laws for that promote good community living.
With regards to property investors challenge in regards to the restriction for the use of accredited contractors approved by the association, the judge said it was not unreasonable to ensure that those doing the work were competent. “I see no reason why there cannot be a list of accredited service providers. The rules do not provide for a closed list and the association says when an owner wishes to use a contractor not already on the list, he can apply and as long as the contractor is suitable, accreditation will be granted.”
A home owners association comment to the matter; “This will clearly set the precedent for any future court cases within South African courts. Home owners associations do have power over residents who think they are on top of the law.”
