No ‘dual’ systems of law on estates

A MOUNT Edgecombe, Durban, man has won his fight against his housing estate management’s strict rules – with KZN’s top court stating that there cannot be “dual systems” of law.

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

In a judgment delivered in the KwaZulu-Natal High Court yesterday, judges J Seegobin, J Chetty and J Bezuidenhout ruled in favour of Mount Edgecombe Country Club Estate resident Niemesh Singh in his case against the estate’s management association, who fined his daughter for speeding on a road within the estate.

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

Other rules challenged at the same time were contract rules restricting the right of an owner to a contractor or service provider of their own choice and the domestic worker rules which imposed restrictions relating to their movements on the estate.

The judges said while associations have the need to regulate traffic on, and access to, the public roads within the estate, such associations were obliged to seek 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 are governed by the contractual arrangement and not by law.

“It is 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, adding that since the roads within the estate are 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 said there were dangers in a dual system where there is a tension between the contract signed when living in a gated estate and the public law.

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.

Times 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 said of the domestic worker rules: “Domestic employees are simply not free to traverse the public roads in the estate save in the limited manner provided by the rules. From a constitutional point of view their rights in this regard are severely restricted.”

They said the estate management appeared to have “categorised them into a class of people who pose a security risk to people living on the estate”.

The judges described the rules as reminiscent of apartheid days and the restrictive nature of the rules was an affront to their rights to human dignity and freedom of movement, among others.

In 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.

“If in fact there are other associations and/or estates in the country, who, like the first respondent, either through ignorance or plain arrogance on their part, have seen fit not to comply with statutory provisions, it’s time that they did.”

The Mount Edgecombe management has 12 months to obtain the necessary authorisations and consents from the Transport Department and will have to pay the legal costs of Singh’s legal team.

President of the Association of Residential Communities, Jeff Gilmour, said they would challenge the judgment as it had implications for estates around the country.

“The judgment infringes on the right of the managing committees to self-govern,” he said.