Rules of the Road and Road Safety within Gated Estates

It is alarming to see that a large number of gated estates in SA wrongly view the roads within the estate as “private” roads and are managing them accordingly.  In many instances the Estate regulatory signage and road markings also does not comply with the requirements of the National Road Traffic Act and is illegal.  

 

It frequently happens that traffic laws in these estates are generally not complied with nor adequately enforced because of the misconception by drivers that the estate roads are wrongly deemed as “private” roads. The misapplication of the law by estates is primarily in relation to the driving of unlicensed vehicles and drivers. Traffic control within the estate is generally viewed only as an internal conduct issue that is normally regulated by estate management through security service providers. This is wrong.

 

Most, if not all roads within these gated estates are not “private roads” but they are in fact “public roads” in terms of the law and they are regulated by the provisions of the National Road Traffic Act 93 of 1996 (NRTA) notwithstanding anything to the contrary that the estate management may state in their rules. Non compliance is still a criminal offence and soon will be regulated by AARTO or the demerit point system. 

 

The controls that the Home Owners’ Associations put into place in terms of contractual arrangements with residents, land owners, visitors and other road users within the estates as conduct rules cannot take on or replace the NRTA or the powers and duties of the law enforcement authorities (provincial and local authorities) being responsible for traffic law enforcement under the NRTA. These are internal contractual conduct measures and the law still applies as on any other public road.

The Administrative Adjudication of Road Traffic Offences Act (AARTO) will also in future change the process and enforcement of traffic laws. AARTO is already effective and will be applied nationally as anticipated in November 2010. AARTO will be better known to us as the “penalty point demerit system” that can lead to the suspension or withdrawal of drivers’ licences.

 

A gated estate is merely a form of township development designed around a specific lifestyle such as golf or retirement estates, with security and private community amenities. However, the estate still retains all the characteristics of an urban township and residential area.  Most of these estates with the exception of a few such a private game parks, fall within the concept or definition of an “urban area” under the NRTA, which defines an “urban area” as a portion of the area of jurisdiction of a local authority which has been subdivided into erven or is surrounded by surveyed erven. 

 

The mere fact that the estate is gated and controlled for security and other development reasons does not make the  roads within the estate “private roads” and the NRTA is not excluded from application on these roads. The fact that permission must be requested by the general public before using the roads within the estate does not exclude the application of the NRTA and the roads remain “public roads” in terms of the law. Residents, service providers, property owners and pedestrians also have a right of access to the estate and protection of the NRTA.

 

A practical example of the absurdity of any contrary view would be for e.g. to sanction a situation where a driver has his license suspended for driving under the influence of alcohol and who cannot drive his car on roads outside the estate but parks it at the estate’s gate and on arrival is allowed to drive his car at liberty in the estate where there are other road users and especially children on or in proximity of the roads.

 

In terms of the NRTA a “public road” is defined as 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 the verge of such road, street or thoroughfare, any bridge, ferry or drift traversing such road, street or thoroughfare, or any other work or object forming part of or connected with or belonging to such road, street or thoroughfare. This wide definition was the same under the former provincial traffic acts of 1989 and the road traffic ordinances of 1966.

 

Although the definition of “public road” that is still worded the same in the NRTA has not been ruled on by the Supreme Court of Appeal (SCA) it is clear from the reported court decisions that the definition must be interpreted widely and secure the intention of the legislature to include all roads used by the public even where there is no right of general entry and permission is required. The reason why it has probably not gone as far as the SCA is that the various High Court decisions are sound and entrench the intention of the legislature. Arterial and similar roads within gated estates would undoubtedly fall within these court rulings and the NRTA definition of a “public road”.

 

Although access to roads within the estate is controlled by gates it does not exclude use by the public or portion thereof having a right of access and these roads are also commonly used by a portion of the public; being the residents and service providers like local Eskom, contractors, government departments, employees, deliveries, refuse removal services, telecommunications services, municipal services, police and a host of other road users that have access to the estate either by law, or invitation of residents, land owners or permitted by the estate management. Merely because a right of access may be required also does not mean that the road is not a public road in terms of the NRTA and all traffic laws will apply to these roads. The control of access is mainly based on security controls.  

 

The fact that estate roads clearly fall within the common law as well as the NRTA concept “public roads” and are not “private roads” has been confirmed over the years in a number of court decisions where "public road" as defined in the Road Traffic Ordinance of 1966 was held to include a road that is commonly used by the public or a section of the public but in respect of which the public or a section thereof has no access as of right. The court has also held that the definition of 'public road' (under the former traffic ordinance of 1966, having the same definition as the NRTA) has two separate disjunctive stipulations in the definition, firstly ‘…which is commonly used by the public or section thereof' and secondly ‘…to which the public or section thereof have a right of access' and these must be read separately as two independent alternative definitions. The courts have also held that the word 'commonly' under the definition of public road means 'without more', or without having first to ask for permission and also as a usual circumstance, as a general thing, in ordinary cases, usually, ordinarily, generally.

 

The courts have confirmed that it would be inappropriate to conclude that the legislature intended to exclude application of traffic laws on roads which are ordinarily or usually used by the public or a section thereof for the driving of vehicles and not to provide for the safety of road users on these roads. It would result in absurdity to hold a view that merely because it is some “privately owned” road used by the public it excludes application of traffic legislation and the law could not be applied and enforced. This would mean for example, that a driver could for drive recklessly or under the influence of alcohol on these roads to the detriment of other road users above the law. 

 

The private driveway of an individual property on the estate or common driveways may however be classed as a private road, but not in all cases, such as where the road forms part of common property and is commonly used by other vehicles such as in cluster developments.

 

The mistake that estate developers and home owner associations are making is to assume that because the development as a township has the right to gate the property and control access that the roads within the estate are then “private roads” in terms of traffic laws. This is incorrect. 

 

For example if someone allows a young unlicensed child to drive a car or ride a quad bike (CAN REPLACE WITH GOLF CART) within the estate both the owner of the vehicle and the child are contravening the NRTA and liable to prosecution. More significantly the parent or even the body corporate could find themselves being liable to be prosecuted and could incur more serious consequences for culpable homicide and a civil claim where someone is killed on an estate road that is not lawfully regulated.

 

In most instances these issues will go unnoticed as the estates normally regulate their internal road conduct rules effectively, but unfortunately the inevitable is bound to happen and if a person is killed or injured in a motor collision on one of these roads the consequential legal implications will raise a myriad of legal issues; such as whether the road is a public or private road, if the regulatory signage and markings is in compliance with legislation and was any other person or party responsible through their negligence other than merely the relevant driver.

 

Take for example a situation on a road in a gated estate which has its own so-called “regulatory sign” stipulating a speed of 40 km/h displayed on a “quaint” and  unique green or brown painted sign (as I have seen in some estates) and a fatal collision occurs on a blind rise where the road is not the right width, it has no road markings and the driver that caused the collision or is at fault is 14 years old riding a quad bike that is not registered nor roadworthy as permitted by the estate. To make matters more complicated the parent drives behind the child in a vehicle. Both were driving at 60 km/h at the time. Who is going to be sued and prosecuted, the motor cyclist, the Home Owners Association, the parent that allowed the unlicensed child to drive or all of these parties?. What is the legal speed ?. Is it 40 km/h or 60 km/h ?. Is the signage and absence of, or wrong road markings the cause and are the signs legal ?.  Is the fine that the Home Owners Association levied for both drivers “speeding” lawful?.

 

The whole tragic matter becomes one big legal mess and where does the centre of all this controversy lay?.  Regretfully the problem will inevitably involve the Home Owners Associations in most if not all instances. Not all estates have illegal signage or do not lawfully apply the road traffic laws. A number of estates do comply with regulatory signage and traffic laws but traffic control and law enforcement cannot be carried out by estate management or private security service providers, unless they comply with the NRTA and the persons enforcing the law are duly and properly authorized to do so in terms of the NRTA and currently the Criminal Procedure Act (later AARTO). 

 

Quite simply, all regulatory and other road signage, road markings, the positioning thereof, the control and use of vehicles on these public roads is no different to the public roads outside of the gated estate.

 

In the example above the first issue that would be relevant once it is confirmed that the road is a public road is that the road would have either a general speed limit of 60 km/h, being an urban area, unless there is legal signage prescribing a different speed.  Most estates fall within the jurisdiction of a local authority and are urban areas in terms of the NRTA as explained above. 

 

If the signage does not comply with the NRTA or it was not lawfully erected then it would not be legitimate signage and the general speed limit of 60 km/h that applies to all traffic in urban areas would apply to those roads as far as the NRTA is concerned. The fact that the internal conduct rule was infringed only affects the internal contractual affairs between that person and the estate management.

 

For signage to be lawful it must be properly authorized and displayed in terms of legislation. The minister, the MEC or any person authorised by the minister or MEC, or the relevant local authority in respect of any public road within the jurisdiction of that local authority, may authorise the developer or the Home Owners Association in writing to display road traffic signs in terms of the NRTA in the gated estate either generally or specifically. A local authority may also in writing authorise any other person or body to display within its area of jurisdiction road traffic signs approved by it prior to the display of such a sign.

 

These signs must all be in conformity with the prescribed colours, dimensions and method of display of road traffic signs. Advertising material used in conjunction with a road traffic sign is prohibited.

 

A very controversial matter relative to the above example will relate to the use of an unlicensed and unregistered motor vehicle on a public road and unlicensed drivers in gated estates.

 

Most users of golf carts in game, golf or eco estates would immediately realize the effect of this on driving golf carts generally within the estate. The logical answer, if you can’t drive on a public road outside of the estate with that vehicle then the same applies within the estate. Golfers however generally have special cart tracks within the estates and if these crossings are approved and comply with the law, normally only crossing the public road, then the use would not be illegal. However general driving of these carts or riding quad bikes within the estate on public roads would have to be specifically approved by the MEC or local authority concerned. The issue of quad bikes is becoming a serious concern where small children are involved, riding what many perceive as “toys” and especially the riding of these vehicles on roads by small children. 

 

There is a growing international trend to use these electric vehicles not only as commuting vehicles within such estates and parks as well as utility vehicles. They have no emission effects, achieve much lower speeds, are more maneuverable and require smaller parking areas. In the USA there has been a move to set roadworthy standards so as to legalise the use on public roads. It is one of those matters that is best regulated than ignored. A report published on the Arrive Alive website on Golf Carts and Road safety states that research has revealed a significant increase in accidents and injuries involving the driving of golf carts. Research has also found that popularity of golf carts has risen dramatically with these four-wheeled vehicles used beyond golf courses and becoming a mode of transportation at sporting events, hospitals, airports, national parks, college campuses, businesses and military bases. Golf carts have also become the primary means of transportation in many gated and retirement communities.

 

 Under the NRTA a vehicle and load, such as passengers on a golf cart, may be exempted from provisions of the Act by the MEC authorizing the estate management in writing, either generally or specifically so as to allow the operation of a vehicle which does not comply with the provisions of the NRTA and the conveyance on a public road of passengers or any load otherwise used in terms of specific controls and management other than in accordance with the provisions of the NRTA.  It is suggested that the better route to go would be to grant temporary permission to users under the NRTA until specific legislation regulating golf carts is passed.

 

A “traffic fine” cannot be imposed by a private body like Homeowners Associations. Unless the relevant person imposing the fine is authorized by law as a peace officer to impose a fine under the NRTA the estate management cannot impose a “traffic fine”. However, don’t get excited yet, that fine can be lawfully payable to the estate as a contractual penalty for violation of a conduct rule by the owner or resident. This has to be contractually regulated between the management and the relevant person committing the violation or infringement of conduct rules. I am doubtful that the estates could however impose any fine on a non resident and that this would be set aside by the courts unless done under the NRTA. However the penalty a resident pays cannot take the place of a “traffic fine” or be enforced by the estate management in terms of the NRTA and later AARTO. It is a breach of a contractual conduct rule and stands separate from the contravention of the NRTA.

 

Estates should start to look at the impact of AARTO on road traffic management and laws as this will change the method of implementation of traffic fines and imposition of penalty points. The Department of Transport and the RTMC may be approached to authorize the body corporate to carry out certain functions in the future under AARTO within estates. This is an administrative process and decriminalization of traffic offences and will change the way traffic fines are imposed. Demerit points would then also apply to offenders who violate traffic laws within the estates.