Estate Living Magazine Estate Living Issue 28 April - Page 29

Oubaai Golf Resort Association Two (RF) NPC special leave to appeal the decision, and as such the issue of whether internal, privately owned estate roads fall within the ambit of the NRTA as deemed public roads or not remains very much a live issue, and until the Supreme Court of Appeal decides the appeal it seems there will remain two schools of thought on the issue – those who maintain that despite being privately owned the roads within an estate fall under the ambit of the authorities under the NRTA and that homeowners’ associations lack the authority to impose and apply road rules, and those who either maintain that the estate roads are not subject to the NRTA or that, even if they are, that this does not preclude a parallel contractual regime being enforced by homeowners’ associations, provided that the standards imposed by the homeowners’ association are not less onerous than those imposed under the NRTA. Regulation 5(1)(i) of the Regulations under the NRTA, motor If the roads within an estate are determined to fall within the vehicles designed exclusively for use on golf courses and which ambit of the NRTA (this would include estates with municipally as such do not satisfy the design criteria for operation on public owned and controlled roads), then the driving of conventional roads are exempt from registration under the NRTA and may golf carts, which are designed exclusively for use on golf courses not be driven on public roads as defined in the NRTA, save for and which do not comply with the design criteria of the NRTA for crossing public roads at designated crossings. What constitutes operation on a public road, should be restricted to golf courses a ‘public road’ in terms of the NRTA is very broad, and the NRTA or designated golf cart paths only. Any use beyond this would defines a ‘public road’ as ‘any road, street or thoroughfare or any fall foul of the NRTA. If, however, the roads within an estate other place (whether a thoroughfare or not) to which the public are determined to fall outside of the ambit of the NRTA, then or any section thereof has a right of access …’. In the Singh homeowners’s associations will be free to regulate golf cart use v Mount Edgecombe matter, the full bench of the High Court as they see fit, applying sound road safety criteria. held that the estate’s internal roads were public roads despite being privately owned by the homeowners’ association, and that Until the Supreme Court of Appeal pronounces on these issues, the relevant rules of the homeowners’ association regulating homeowners’ associations are well advised to ensure that none of conduct on the estate roads were invalid, as no authority had their rules contravene the provisions of the NRTA and should only been sought by the association to regulate the relevant conduct permit road-legal golf carts to be driven on the estate’s internal on the estate roads by the erection of the appropriate signage roads by licensed drivers. Road-legal golf carts are golf carts and approval of the relevant speed limits below the general capable of being registered under the NRTA and that as such speed limit of 60kmph applicable on public roads. Counsel for comply with the design criteria of the NRTA for lawful operation the homeowners’ association had argued that the relationship on public roads. Alternatively, estate management should between the homeowners’ association and all owners within endeavour to seek the appropriate permission or exemption from the estate was based on contract that was freely and voluntarily the relevant MEC to permit the use of conventional golf carts entered into, and that the rules of the estate operated as a on internal estate roads. In addition, estate residents who drive parallel system to the statutory regime prescribed by the NRTA. conventional golf carts on internal estate roads or otherwise leave Accordingly, the homeowners’ association did not ‘purport to estate property and drive on external roads do so at risk and are utilise, invoke or usurp the powers under the NRTA’ and as such well advised to seek appropriate legal advice. They should also did ‘not consider it necessary to seek any authorisation in terms determine from their short-term insurers whether they hold valid of the NRTA for the enforcement of its private rules’. insurance cover for such conduct. At the time of writing this article, the Supreme Court of Appeal had Lazelle Paola (Partner) Cox Yeats Attorneys, Umhlanga Ridge just granted the Mount Edgecombe Country Club Management www.estate-living.com | 29