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
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