Question:

Good day. Perhaps you can provide me with some guidance. I stay in a complex and there are numerous vehicles with expired licence discs. These people happily take to our roads with these vehicles and are obviously in contravention of the law.

I have taken this up with our body corporate and they are reluctant to take action as these vehicles are not on a public road they say. My argument is that in a sense any movement within the complex does suggest that they are on a public road. More importantly, how do we know whether that car belongs to its rightful owner and is not a stolen vehicle stored here while the dust settles?

I look forward to your input. Thank you

Answer:

This is a hot topic for us at the moment as there is an enormous amount of abuse happening in Estates and housing developments where their home-owners associations are illegally involving themselves in the enforcement of traffic laws.  Many of these developments think that they are able to get around the fact that they have no legal authority to enforce any traffic laws by writing these into their home-owners rules and regulations, however this still doesn’t make it lawful and in fact, those who engage in these practices are committing fraud.  This is because only a duly appointed peace officer may issue a traffic fine in terms of the National Road Traffic Act and other legislation and a “public road” is defined in the National Road Traffic Act as follows:

 

“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.

 

It is our view as well as the view of counsel who provided us with a legal opinion on this matter that the main section of the definition in the National Road Traffic Act is very clear in its definition on what does in fact constitute a public road and we do not believe that any housing estates, whether they be a freehold or sectional title development is not excluded from this definition, regardless of who builds and/or maintains the roads therein.

It is a requirement in terms of regulation 36(3)(a) and (b) of the National Road Traffic Act that each and every motor vehicle be registered and licenced if it is operated on a public road.  This provision reads as follows:

(3) (a) No person shall operate on a public road, a motor vehicle that is not registered and licenced or not licenced, unless such vehicle is exempt from registration and licencing as contemplated in regulation 5.

(b) No person shall operate a motor vehicle on a public road unless a valid licence disc or licence disc and roadworthy certificate is displayed on such motor vehicle as contemplated in subregulation (1).

I am pleased to hear that your body corporate is reluctant to take action themselves since them fining people would most certainly be unlawful.  There is however nothing which prevents them from approaching your local traffic authority and asking them to come and fine the owners of the motor vehicles that are not properly licenced.

However, I would hasten to add that they would probably be reluctant to do this as well, given the fact that your body corporate would then have to deal with the unhappiness’s of all of those who fall foul of such an operation.  Unfortunately it seems to have become a South African norm that those who choose to break the law and are subsequently taken to task tend to squeal like stuffed pigs when this happens and we have had scores of complaints from people who have gone to do their shopping, only to come out and find a traffic fine placed on their windscreen for having an expired licence disc.

These people hold the view that the parking lot of a shopping centre is private property and therefore they should not be fined by traffic officers whilst they are on that property.  But sadly, these people are grossly misinformed since car parks at shopping centres are indeed deemed to be public roads and even if they weren’t, how does anyone suppose that a motor vehicle got there in the first place, if it had not been operated on a public road to start with?

If your body corporate would like to mitigate the backlash from residents who believe they are above the law, perhaps they could send out a notification to all residents that it has been noticed that many unlicensed motor vehicles are evident in the complex and the body corporate urges them to bring their licensing up to date as they will be asking traffic authorities to visit the complex.  Whether the traffic authorities will in fact bother to come or not is another thing altogether.

Best Regards,

Howard Dembovsky

National Chairman – Justice Project South Africa (NPC)

Also view:

Rules of the Road and Road Safety within Gated Estates and Communities

Be Sociable, Share!

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

clear formSubmit