Is it legal for officers to hide behind traffic / road signs and not being visible to vehicles? Can a security estate appoint officers to trap in the estate charging ridiculous amounts eg. driving 52km in a 30km zone and the speed fine is R1355.00? Also can you please assist with the following questions based on security estates: 1. Are the roads inside the estate “private roads”? 2. Is the speed limit assigned in the estate a legal speed limit? 3. Do the estate rules stand above existing laws, such as the Road Traffic Act? 4. Can an
Also can you please assist with the following questions based on security estates: 1. Are the roads inside the estate “private roads”? 2. Is the speed limit assigned in the estate a legal speed limit? 3. Do the estate rules stand above existing laws, such as the Road Traffic Act? 4. Can an
1. Are the roads inside the estate “private roads”? 2. Is the speed limit assigned in the estate a legal speed limit? 3. Do the estate rules stand above existing laws, such as the Road Traffic Act? 4. Can an
2. Is the speed limit assigned in the estate a legal speed limit? 3. Do the estate rules stand above existing laws, such as the Road Traffic Act? 4. Can an
3. Do the estate rules stand above existing laws, such as the Road Traffic Act? 4. Can an
4. Can an estate reassign enforcement of the Road Traffic Act to your advantage? 5. Are estates allowed to “issue fines” for Road Traffic Act
5. Are estates allowed to “issue fines” for Road Traffic Act offenses?
7. Which Road Traffic Laws are estates allowed to enforce?
At the outset, please note that all of the remnant provisions of the Road Traffic Act (29 of 1989) were repealed with effect from 20 November 2010 and the National Road Traffic Act (93 of 1996) and its Regulations is the only legislation which would be of relevance here.
There is no law which prescribes whether traffic officers who are legally appointed in terms of Section 3A of the National Road Traffic Act must be visible, or may hide away when conducting speed limit enforcement exercises. Security guards are not however traffic officers, so they cannot conduct such exercises, even if they stand out in the open and they have no powers whatsoever to stop vehicles on public roads.
In terms of the National Road Traffic Act, a local or provincial authority may enforce its provisions. A homeowners association is not a local authority, and never will be. There is furthermore no enabling legislation authorising any homeowners association, a security company or anyone else to enforce the provisions of the National Road Traffic Act. There is also no such thing as a “private road” in an urban area, although there may be on farms, etc., provided that the public are not ordinarily allowed to drive on those roads. The second any member of the public is granted the right to use that road, regardless of whether it is by “signing in” or not, the road is regarded by the Act as being a public road.
Section 57(10) of the NRTA prescribes that “No person shall display any road traffic sign on a public road unless having been authorised thereto by or under this Chapter” and only the MEC (for roads and transport) may, under certain conditions, authorise anyone or association other than a local authority to erect a road traffic sign. Simply put, this means that a homeowners association may, with the written permission of the MEC, erect any road traffic sign. Few however bother to seek permission since they are under the false impression that the roads in private estates and/or gated communities are “private roads”. Under no circumstances may the MEC also authorise anyone other than a local or provincial authority to enforce the provisions of the National Road Traffic Act.
Statutes (laws made by the legislature) will always trump societal rules, whether those rules are made by homeowners associations or not. This does not however mean that homeowners associations and the like respect these provisions. These entities appear to get around this fact by holding that their contracts with homeowners and residents constitute a contract between them and therefore may be enforced and some courts have bought into this notion.
The one thing that all of these entities forget is that there is a supreme law in South Africa which governs every other law in South Africa and that law is called “the Constitution of the Republic of South Africa, 1996”. Section 35(3) of the Constitution contemplates the rights of accused persons and makes no reference to whether that person is accused by a legitimate law enforcement authority or wannabe cops employed by homeowners associations.
If an allegation exists that a person was exceeding the speed limit in a gated community, it is not for them to prove that they were not, but for the accuser to prove that they were. This can only be done legally in a legitimate court – not a kangaroo court established by a homeowners association. When such a charge is brought before a court, the onus will be upon the homeowners association to prove that they have the authority to enforce speed limits – which are an inextricable part of the National Road Traffic Act, prior to having to prove that their allegation of exceeding that speed limit is in fact true.
This nonsense of demanding payment of what are effectively fines for traffic offences under threat of locking people out of these estates would never survive constitutional muster, as has been repeatedly proven in South Africa’s courts.
Just why it is that these estates choose to invest large sums of money in speed measuring equipment for the purpose of generating traffic fines – or as they call it “contravention of estate rules” – defies logic and defeats their pathetic argument that they do this to reduce incidents of speeding, rather than generating revenue. Proper traffic calming engineering interventions don’t only deter speeding, but if they are properly thought out and installed, they prevent it. They also have the advantage of working 24 hours a day, 365 days a year without any human intervention. What they don’t do however is generate revenue, thereby constituting a cost centre, rather than an [illegal] income-generation tool. They may however not be erected on a public road without the permission of the local or provincial roads authority.
In a nutshell, the practice of private entities imposing and then enforcing speed limits within gated communities and/or estates is, in terms of the National Road Traffic Act, is strictly illegal and I would argue, not in the interests of road safety, but rather geared towards making money.
If what the gated communities say is true and they are entitled to write clauses into their contracts which contravene national legislation, then it can be equally argued that a gated community can also exempt its residents from the provisions of other national legislation by, for example, writing it into their contracts that residents may plant an cultivate cannabis plants in their gardens. I can assure you that no court would deem this legal and therefore, the question must be asked – why should gated communities get away with contravening the provisions of the National Road Traffic Act?
National Chairman – Justice Project South Africa (NPC)
— Arrive Alive (@_ArriveAlive) December 1, 2016