Question:
Please assist us with this enquiry relating to complaints from 2 “private estates / town house complexes”
- Meyersdal Eco Estate.
The Estate was created with the inclusion of public roads (municipal area) and newly built private roads. It has a secure controlled access. The “board of directors / body corporate” have implement speed measurement operations on the “public” and private built roads where photos of speed infringements are taken and the relevant resident receives a “fine” on their billing system. This includes any visitors to such resident who “speed”.
- Serengethi Estate.
Resident is complaining of the “illegal’ use of ATV (quad bikes) by residents and security officials. Apparently one officer was charged by EMPD when using the ATV outside the estate on the patrol permeter (understandably).
As I understand:
(a) Where the access is controlled such roads are not public roads. However the Meyersdal Estate has incorporated previous public roads where the municipality still services the road. Therefore if “speed” operations are being done privately can this be deemed a “criminal offence”???
(b) If a serious “accident / crash” occurs in privately owned roads, surely then for legal/insurance purposes requisite criminal cases of reckless driving / culpable homicide are then opened. How then do we deal with the road traffic legislation being able to facilitate the prosecution of unlicensed / unregistered ATV or any other traffic offence (eg. unlicensed drivers) within the confines of such private roads?
Please advise.
Answer:
This was also discussed on the Arrive Alive website on the page titled “Rules of the Road and Road Safety within Gated Estates”
We would like to share a response from Howard Dembovsky from Justice Project:
“I am aware of both complaints with respect the residential estates cited in your email and this so-called debate that has been raging on for some time now – not only within these estates but in other gated communities throughout South Africa. I have long been of the opinion that the largely privileged gated communities are blatantly contravening the National Road Traffic Act and other laws in the Republic of South Africa.
There can be no doubt that in terms of the National Road Traffic Act only “authorised officers” are mandated and allowed to enforce its provisions and the definition of a “public road” therein is clear and makes no mention of “controlled access”. It is therefore arguable that the same laws, rules and procedures apply within gated communities as apply anywhere outside of them.
During 2012, we lodged a complaint with the Director of Public Prosecutions and the Road Traffic Management Corporation Anti-Corruption Unit with respect to unlawful speed enforcement taking place through a private entity in the Centurion Golf Estate in Tshwane. A complaint of fraud was registered against a Mr Barry Fryer Dudley of iCube who was issuing speeding fines against persons he alleged were speeding in that estate. The case number is Lyttleton n SAPS CAS 204/1/2013 and the charges were laid by Mr Jody Pillay, the Chief of the RTMC’s Anti-Corruption Unit.
We have also obtained legal opinion from Advocate Don Smart, who was the former Counsel to the Automobile Association of South Africa and I attach that opinion hereto. I think that it should answer most, if not all of your questions amply but should you wish to discuss the matter further, I would be more than happy to do so.
“As you are aware, two complainants have repeatedly registered complaints about the quad bikes formerly, and now Kawasaki Mule 610 ATVs, which are both, left hand drive vehicles and bear a manufacturer’s sticker stating: “WARNING: Use of this vehicle on public roads and paved surfaces is hazardous. This vehicle is designed and equipped for off-highway use only. Do not operate this vehicle on public roads and pave surfaces” being operated on the public roads within Serengeti. Complaints about civilians – often security guards issuing “speeding fines” have also been lodged by various parties.”
What I find utterly astounding is that if any unlicensed and unregistered motor vehicle was operated, or even found to be on a public road anywhere outside of any estate, it would immediately be impounded and the owner prosecuted accordingly. Complaints around this matter have been flying around for more than 18 months now and the apparent reluctance of the EMPD to do anything about it can only be viewed as ludicrous and tantamount to dereliction of its duty under the Constitution. Similarly, if any civilian were to arbitrarily start issuing their own traffic fines in the street, they would be summarily arrested and charged with impersonating a traffic officer, at the very least.
For some obscure reason, it would appear that when it comes to gated communities, the law has been cast aside in favour of allowing these suburbs of privilege to operate as mini-Republics and/or homelands within the Republic of South Africa.
It is my sincere hope that something will eventually be done about what is going on, particularly in Serengeti Wildlife Estate since it is only going to be a matter of time until a collision involving one of their unregistered and unlicensed motor vehicles does occur. If and when that happens, the victims thereof will arguably have recourse against both, the Ekurhuleni Metropolitan Police Department and the Gauteng Department of Community Safety for their failure to act within the framework of the Constitution and actively prevent these vehicles from operating on the public roads in and around that estate.
I am not suggesting for one minute that Serengeti Wildlife Estate or Meyersdal Eco Estate should be exclusively targeted since they are not the only places where this nonsense is going down but a start has to be made somewhere and since you have had complaints lodged with you by various persons perhaps it is with these two estates that a start should be made?
Best Regards,
Howard Dembovsky
National Chairman – Justice Project South Africa (NPC)
Additional Info:
“On the issue of gated estates as you know I was appointed by Pather and Pather attorneys Durban as consultant counsel working with Adv O Moosa SC who was the Senior in a matter N Singh v Mnt Edgecombe Country Club Management Association, but I am not sure who the counsel is now. Mr Sivi Pather can be contacted as to the current status of this case.
I suggest that this case is supported and should be the main thrust to address the problem and followed as it is in KZN and the one provincial division appeal case S v Dillon that supports the (logical) conclusion as to the applicability of the NRTA in gated estates was taken in KZN. Thus on the stare decisis principle any single judge would be bound to follow that ruling. I am very confident that the Supreme Court of Appeal would uphold what was ruled in this and the other cases I have quoted in the opinion given to your attorney.
If I can be of any further assistance please let me know.
Kind regards
Don Smart”
Also view:
“Rules of the Road and Road Safety within Gated Estates”