Time is up for gated communities

A DURBAN man has won his fight against his housing estate management’s strict rules for fining his daughter for speeding on a road within the estate.

But a fresh legal challenge is on the horizon, as estate management associations and body corporates across South Africa plan to tackle the judgment, maintaining their right to decide how to govern themselves.

In the judgment delivered in the KZN High Court yesterday, Judges J Seegobin, J Chetty and J Bezuidenhout, ruled that Mount Edgecombe Country Club Estate resident Niemesh Singh won his case against the association.

The incident happened in October 2013, and when Singh refused to pay the fine, he and his family were given restricted access to the estate.

He also challenged contract rules which restricted the right of an owner to choose a contractor or service provider of their own choice as well as domestic worker rules, which impose restrictions relating to their movements on the estate.

The judges said that while associations have the need to regulate traffic on and access to the public roads within the estate, such associations were obliged to seek the necessary permission from the Transport MEC or the municipality concerned, which transport laws require.

Other rules such as the keeping of pets or what colour to paint a house on an estate was governed by the contractual arrangement and not by law.

“It’s common cause that the first respondent (Mount Edgecombe Country Club Estate Management Association) did not apply for such permission at any stage.

“I consider that this failure on the part of the first respondent must render such rules and the contractual arrangement with the members illegal,” said the judges.

They added that since the roads within the estate were public roads, it was only the minister of transport or someone authorised by the minister, who had the power to regulate any aspect of these roads.

The judges found there were dangers in a dual system – one law under a contract signed when living in a gated estate and the public law.

“This contractual arrangement requires a court to recognise and promote a regime of rules which have not been sanctioned by the authorities concerned,” said the judges.

Regarding the rules for domestic employees, the judges were biting in their criticism of the rules which stated that employees must not walk on the estate unless a bus service transporting them to and from the entry gates was unavailable.

The times that the domestic employees could work on the estate were also regulated, as temporary domestic workers were required to leave their identity documents at the entrance and they were returned on exit.

The judges labelled the rules reminiscent of apartheid, finding the restrictive nature of the rules was an affront to the rights of the workers to human dignity and freedom of movement, among others.

In their concluding remarks, the judges said: “Courts would be failing in their duties were they to overlook and/or condone flagrant and deliberate contraventions of statutory provisions.

The Mount Edgecombe estate management has 12 months to obtain the necessary authorisations and consent from the transport department, and will have to pay the legal costs of Singh’s legal team.

Jeff Gilmour, the president of the Association of Residential Communities, said it would challenge the judgement.