New case deals with estates issuing traffic fines in South Africa

According to Johan du Toit, head of department for property disputes and contractual and delictual litigation at law firm Barnard Incorporated, it has become a common feature of estate living for homeowners to have penalties applied to their levies for being in breach of estate rules.

Is this legal? Is the HOA allowed to add the speed fine to your levy? These questions were recently answered by the Supreme Court of Appeal in a new case.The case dealt with a homeowner in a prominent estate on the KwaZulu Natal north coast. The estate’s home association’s Memorandum of Incorporation made it obligatory for all homeowners of the estate to be members of the HOA.

The matter was brought to the Durban High Court, where the homeowner sought to get their access cards reinstated and the estate’s conduct rules overturned. The court ultimately ruled that the HOA should reactivate the access cards but dismissed the challenge to the rules. Arguing before the SCA, however, the concession that the estate’s roads were public was withdrawn as being “erroneously made”. The SCA found that the roads in the estate were indeed private.

“In this context, the word ‘public’ does not include persons who are there with the permission of the owners of property within the estate. The public, so it has been held, must be the general public, not the special class of members of the public who have occasion for business or social purposes to go to the estate, and the use of the roads by the public must be more than mere casual or isolated use,” he said.

Nothing new it’s been happening

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