About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2017
>>
[2017] ZAKZPHC 48
|
|
Singh and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and Others (AR575/2016) [2017] ZAKZPHC 48; [2018] 1 All SA 279 (KZP); 2018 (1) SA 615 (KZP) (17 November 2017)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
JUDGMENT
CASE NO: AR575/2016
REPORTABLE
In the matter between:
NIEMESH
SINGH First
Appellant
MUNSHURAI MADHANLAL
RAMANDH Second
Appellant
and
MOUNT EDGECOMBE COUNTRY CLUB ESTATE
MANAGEMENT ASSOCIATION TWO (RF)
(NPC) First
Respondent
MINISTER OF
TRANSPORT Second
Respondent
MEC FOR THE DEPARTMENT OF TRANSPORT:
KWAZULU
NATAL Third
Respondent
ETHEKWINI
MUNICIPALITY Fourth
Respondent
Coram: Seegobin J, Chetty J et Bezuidenhout J
Heard: 07 August 2017
Delivered: 17 November 2017
ORDER
On appeal from the High Court, KwaZulu-Natal Division,
Durban (Topping AJ sitting as a court of first instance):
(a) The appeal is upheld to the
extent set out herebelow.
(b) The order of the court
a
quo
dismissing the
appellants’ application is set aside and replaced with the
following:
1.
It is declared that the
first respondent’s Conduct Rules 7.1.2, 7.1.3, 9.3.2, 9.4.1 and
9.4.3 are invalid but that such invalidity
is suspended for a period
of twelve (12) months to afford the first respondent an opportunity
to obtain the necessary authorisations
and/or consents under the
National Road Traffic Act, 93 of 1996
.
2.
The first respondent is
directed to pay the costs of this application, such costs to include
the costs consequent upon the employment
of two counsel.
(c) The first respondent is directed
to pay the costs of the appeal including the costs of the application
for leave to appeal,
such costs to include the costs consequent upon
the employment of two counsel.
JUDGMENT
SEEGOBIN J (Chetty J and Bezuidenhout J concurring)
INTRODUCTION
[1] The issues that arise in this
appeal, although having their origins in rather mundane events which
took place in a gated estate,
have somewhat evolved into a battle of
principle between the appellants on the one hand and the first
respondent on the other.
The issues also bring into play the
demarcation of public and private law and their impact, if any, on
the regime of certain conduct
rules that exist in the estate in
question.
[2] The first appellant,
Mr
Niemesh Singh
and
the second appellant,
Mr
Munshurai Madhanlal Ramnandh
,
live together with their families on Mount Edgecombe Estate Two (‘the
estate’). The first respondent is the
Mount Edgecombe
Country Club Estate Management Association Two (RF) (NPC) (‘the
association’) which is one of two management
associations
established for the purpose of governing, managing and regulating the
affairs of distinct portions of the Mount Edgecombe
Country Club
Estate which includes the estate on which the appellants and their
families reside. By virtue of the appellants’
ownership
of properties on the estate, they are obliged to be members of the
first respondent. Apart from being joined as interested
parties in
this matter, the second, third and fourth respondents played no role
in these proceedings.
[3] During or about October 2013 the
first appellant’s daughter was issued with three speeding fines
by officials of the association
for speeding on the roads in the
estate. These fines were levied against the first appellant’s
account as a representative
member of the family home. Despite
representations by the first appellant to the association regarding
the fines, the association
simply dismissed such representations and
insisted that the fines be paid in terms of its ‘pay first,
argue later’
rules. When the first appellant failed to
pay the fines, the family’s access along the roads to their
home was suspended.
The effect of this was that the first
appellant’s family was barred from passing through the
association’s boom control
which was located on the entry road
to the estate.
[4] This denial of access by the
association and the simmering resentment on the part of both
appellants regarding the manner in
which the association was
implementing and applying certain aspects of its conduct rules,
resulted
firstly
,
in the first appellant instituting an urgent application for
spoliatory relief and
secondly
,
in the first and second appellants instituting a separate application
in which they challenged certain aspects of some of the
association’s
rules (‘the rules application’). To this
application the association filed a counter-application
in which it
sought an order entitling it to suspend the use of access cards to
the first appellant, his invitees and members of
his family, together
with the biometric access for such persons, for as long as certain
fines issued in terms of it’s conduct
rules were not paid.
In the third application (‘the trespass application’) the
first appellant sought an order
directing the association to allow
certain contractors engaged by him access to the estate and for a
further order restraining
the association or any person acting
through or on it’s instructions, from entering upon various
specified immovable properties
within the estate.
[5] All three applications were argued simultaneously
before Topping AJ in the High Court, Durban. The rules
application by
the appellants and the counter-application by the
association was dismissed. While the spoliation application by
the first
appellant succeeded, his trespass application failed.
The present appeal, with leave of Topping AJ, is only against his
judgment
and orders in the rules application. At the appeal hearing
on 7 August 2017, the appellants were represented by
Mr Kemp SC
assisted by
Mr Ganie
while the association was represented by
Mr Du Plessis
assisted by
Ms Pudifin-Jones
. The
court is indebted to counsel on both sides for their helpful heads of
argument and oral submissions herein.
THE MOUNT EDGECOMBE ESTATES
[6] The two Mount Edgecombe Country Club Estates which
are made up of Mount Edgecombe Country Club Estate 1 and Estate 2 are
situate
within the Mount Edgecombe area which falls within the
geographical area covered by the Ethekwini Municipality. The Mount
Edgecombe
Country Club Estates are very similar to those found
elsewhere in the Republic and other countries around the world. These
estates
appear to fall within a category of township developments
commonly referred to as gated estates. This country has seen a
proliferation
of such estates in the last 15 to 20 years.
MOUNT EDGECOMBE ESTATE 2
[7] The estate consists of in excess
of 890 freehold and sectional title residential developments.
The estate is situated
in and around a golf course and is traversed
by not only roads but also by golf cart paths. These golf cart
paths cross the
various internal roads at dozens of points.
Besides the freehold and sectional title properties, the estate also
comprises
of extensive common property consisting of open areas,
dams, ponds, rivulets, water features, community facilities, roads
and other
infrastructure. The common facilities on the estate
include the Mount Edgecombe Country Club Golf Course 2, the clubhouse
and a function venue which is utilized for conferences, corporate
events, board meetings and weddings.
[8] Apart from golf the estate also
provides facilities for various other sporting activities such as
squash, tennis, fishing and
bowling. The entire estate is
enclosed by a two metre high palisade fence topped with electrified
security wiring.
The estate has gated access points which are
controlled by guards. Some access points are manned on a 24
hour basis, 365
days of the year. The estate is serviced by a
network of roads which are split amongst various erven registered in
the name
of the association.
[9] The association in question is a
non-profit company which as I indicated already manages the Mount
Edgecombe Country Club Estate.
Clause 3 of its Memorandum of
Incorporation (MOI) defines the first respondent’s objects
which are,
inter
alia
, to protect,
advance and promote the interests of its members and to co-operate
with the local authority, Provincial Government
and all other
appropriate authorities for the benefit of it’s members and the
association itself.
[10] The MOI (clauses 20 and 21) empowers the directors
of the association to make reasonable rules for certain specified
purposes.
It expressly empowers the making of rules which
include the right to impose ‘reasonable financial penalties’
on members
who fail to comply with the provisions of the MOI or the
rules. The MOI goes further to empower the directors to enforce
the rules and,
inter alia
, to “take or cause to be taken
such steps as they may consider necessary to remedy the breach of any
rules of which a member
may be guilty and debit the costs of doing so
to the member concerned”. The rules are expressly stated
in the MOI (clause
21.5) to be binding on all members. Clause
21.4 of the MOI prescribes that any rules made by the board shall be
‘reasonable’
and shall be in the interests of the
association and shall apply ‘equally’ to all members.
PROCEEDINGS BEFORE THE COURT
A QUO
[11] Three categories of the conduct
rules
[1]
were challenged by the appellants before Topping AJ. In summary these
rules can conveniently be categorised as:
11.1 ‘the road rules’
which permit the first respondent to control (‘police’)
the roads within the estate
and to impose ‘speeding fines’.
The essence of the challenge was that the first respondent was
purporting to carry
out the functions of traffic officers as defined
in the National Road Traffic Act, 93 of 1996 (NRTA)) on the roads,
which are public
roads in terms of the NRTA and that the first
respondent was purporting to enforce the provisions of the NRTA
within the estate.
11.2 ‘the contract rules’
which restrict the right of an owner (such as the first or second
appellants) to choose a
contractor or service provider of his or her
choice to perform work on the owner’s property within the
estate.
11.3 ‘the domestic rules’
which impose restrictions on the domestic workers employed by owners
and residents on the
estate relating to their hours of work and their
movements into and out of the estate and that they may not walk on or
over the
public roads within the estate during work hours.
[12] Placing heavy reliance on the
recent judgment of Olsen J in the matter of
Abraham
v The Mount Edgecombe Country Club Estate Management Association Two
(RF) NPC
[2]
,
Topping AJ concluded that since the relationship between the first
respondent and the appellants was located firmly in contract,
the
conduct rules and the restrictions imposed by them were of a private
nature arising out of the appellants’ voluntary
choice of
purchasing property on the estate. In paragraph [11] of his judgment
Topping AJ summarized this finding in
Abraham
as follows:
“ …
The court upheld the argument
that the
contractual nature
of the relationship between the respondent and its members, and its
members’ voluntary choice of purchasing property residing
within the estate and subjecting themselves to its rules,
provided
a framework in which the matter should be decided
”
(my emphasis)
In para [12] of his judgment Topping
AJ went on to state that
“…
Any consideration of whether the
rules complained of by the applicant are unlawful and ought therefore
to be regarded as
pro non scripto
must entail an application of the principles laid down in various
leading judgments of the Supreme Court of Appeal.”
[3]
BEFORE THIS COURT
[13] While the appellants persisted with their challenge
relating to the road rules and the domestic rules before this court,
they
effectively abandoned their challenge in respect of the
contractors’ rules. It seems to me that a finding in respect of
the
roads rules will have an impact on the rules relating to domestic
employees and the alleged restrictions placed on them by the first
respondent. In light of the above, it is to the roads challenge that
I now turn. In the course of the judgment I will deal with
the main
submissions advanced on behalf of the respective parties in argument.
THE ROADS CHALLENGE
[14] The road rules which are
challenged by the appellant are Rules 7.1.2 and 7.3.1. They provide
as follows:
“
7.1.2 The speed limit throughout the
Estate is 40km/h. Any person found driving in excess of 40km/h will
be subject to a penalty.
The presence of children and pedestrians as
well as many undomesticated animals such as buck, monkeys, mongoose,
leguans and wild
birds means that drivers need to exercise caution
when using the roads.
7.3.1 Operating any vehicle in contravention
of the
National Road Traffic Act within
Estate 2 is prohibited.”
[15] While the first respondent
initially sought to deny in its answering affidavit that the roads
within the estate are public
roads, it became common cause both in
the court
a quo
and in this court that such roads are public roads. In fact,
Rule
7.1.1
of the conduct rules provide that “the roads on Estate 2,
in spite of being within the fence and appearing to be ‘private’,
are in fact public roads and therefore within the jurisdiction of the
National Road Traffic Act 93 of 1996 (as amended).”
[16] At the heart of the dispute
between the parties regarding the policing of the roads within the
estate, lies the NRTA which
is to be read with the regulations
promulgated thereunder. A brief synopsis of the relevant provisions
of the NRTA is necessary
for a proper determination of the dispute:
16.1 The NRTA is a piece of national
legislation which is aimed to provide ‘for road traffic matters
which shall apply uniformly
throught the Republic and matters
incidental therewith.’
[4]
Section 2 deals with the application of the Act and provides as
follows:
“
2. Application of Act-
This Act shall apply throughout the Republic:
Provided that any provision thereof shall only apply to those areas
of the Republic
in respect of which the Road Traffic Act 1989 (Act 29
of 1989), did not apply before its repeal by section 93, as from a
date fixed
by the Minister by Notice in the Gazette.”
16.2 A ‘public road’ is
defined in section 1 as being any “road, street or thoroughfare
or any other place (whether
a thoroughfare or not) which is commonly
used by the public or any section thereof or to which the public or
any section thereof
or to which the public or any section thereof has
a right of access …”
16.3 Chapter IX of the NRTA deals
with matters relating to road traffic signs and general speed limits.
Sections 56 to 59 in particular
contain various provisions which have
a bearing on the impugned provisions of the road rules as formulated
and implemented by the
first respondent. In terms of section 56(1) it
is only the Minister who may prescribe signs, signals, markings or
other devices
(collectively referred to as road traffic signs) as he
or she may deem expedient, as well as their significance and the
conditions
on and circumstances under which road traffic signs may be
displayed on a public road “for the purpose of prohibiting,
limiting,
relating or controlling traffic in general or any
particular class of traffic on a public road …” In terms
of section
56(2) it is
only
the Minister who may, subject to such conditions as he or she may
deem expedient, “
authorise
any person or body to display on a public road any sign, signal,
marking or other device for the purposes of ascertaining
the
suitability of such sign, signal or device as a road traffic sign
.”
(my emphasis)
16.4 Section 57(1) prescribes that
only the Minister or a person authorised by him may cause or permit
to be displayed in the prescribed
manner any road traffic signs on
any public road.
16.5 In terms of section 57(3)(a), a
local authority or any person in its employment authorised thereto,
may display or cause to
be displayed a road traffic sign in respect
of any public road within the area of jurisdiction of that local
authority.
16.6 Section 59(1)(a) of the NRTA
provides that the general speed limit in respect of every public road
or section thereof, other
than a freeway, situated within an urban
area, shall be as prescribed by the Minister. The Minister in
promulgating regulations
under the NRTA, has prescribed the general
maximum speed limit for a public road situated within an urban area
at 60km per hour.
[5]
16.7 In terms of section 59(2) of the
NRTA an appropriate traffic sign may be displayed on any public road
by the Minister or any
person authorised by him or her or the Chief
Executive Officer of the Road Traffic Management Corporation or the
Local Authority,
in accordance with section 57, indicating a speed
limit other than the general speed limit which applies in respect of
that road
in terms of section 59(1).
16.8 Section 59(4)(a) of the NRTA
further prescribes that no person shall drive a vehicle on a public
road at a speed in excess
of the general maximum speed limit which
applies in respect of that road or, in terms of section 59(4)(b), the
speed limit indicated
in terms of section 59(2) by an appropriate
road traffic sign.
16.9 Section 59(3) of the NRTA
provides that the Minister may, in respect of a particular class of
vehicle, prescribe a speed limit
which is lower or higher than the
general speed limit subject to complying with certain formalities.
16.10 Significantly, section 57(6) of
the NRTA provides that the MEC concerned may authorise any
association or club to display
any such road traffic signs as he or
she may deem expedient, subject to such conditions as the MEC may
determine, on any public
road referred to in subsection (2) or (3),
and any such association or club may thereupon, in the prescribed
manner, display on
a badge or other token of the association or club
in conjunction with any such road traffic sign.
16.11 Section 57(10) provides that no
person shall display any road traffic sign on a public road unless
having been authorise thereto
by or under this Chapter.
[17] In terms of section 156(5) of
the Constitution
[6]
a
municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective
performance
of its functions. Schedule 4 of the Constitution provides for
functional areas of concurrent national and provincial
legislative
competence. One of the matters specified in Part A of Schedule 4
concerns ‘road traffic regulations’. The
enforcement of
the NRTA accordingly vests in the Municipality (in whose area of
jurisdiction public roads fall within) as the executive
authority
empowered to administer the matters set out in the relevant schedule
to the Constitution, one of them being ‘road
traffic’.
[18] In terms of section 89(1), any
person who contravenes or fails to comply with any provision of the
NRTA shall be guilty of
an offence. Section 89(1) read with the
provisions of section 59(4) of the NRTA provides that any person
convicted of an offence
shall be liable to a fine or imprisonment for
a period not exceeding three (3) years in terms of section 89(3).
Under the NRTA
the duty to regulate, control and monitor traffic on
public roads is vested in traffic officers.
[7]
Interestingly, the NRTA, although making a contravention of the NRTA
a criminal offence, and while providing for sanctions as well
designating traffic officers as the persons authorise to regulate and
control traffic on public roads, makes no provision for the
manner in
which the contravention in question is to be policed or enforced. For
this one has to have regard to the provisions of
the Criminal
Procedure Act 51 of 1977 (the CPA).
[19] The offence of driving a vehicle
at a speed exceeding a prescribed limit falls within Schedule 3 to
the CPA. The offences detailed
in Schedule 3 are considered to be
minor offences and for this purpose, peace officers, as defined in
the CPA, are permitted to
issue written notifications to a person
alleging that such person has committed an offence of the sort
specified in Schedule 3
of the CPA. The written notification sets out
the amount of the fine which a court trying such a person for such
offence would
in all probability impose upon him or her.
[20] A traffic officer is, in turn, defined in the NRTA
as a traffic officer appointed in terms of section 3A of the NRTA and
only
members of the Municipal Police serve in terms of
section 1
of
the
South African Police Service Act, 68 of 1995
. Additionally, for
the purpose of Chapter IX of the NRTA, which as pointed out already,
includes the sections that deal with speed
limits, a traffic officer
includes a peace officer. The effect of all this is that the NRTA,
read with the relevant provisions
of the CPA, provides that only
peace officers, who may also be traffic officers, are empowered and
entitled to police public roads
with regard to all questions of
speeding.
CONTEXT OF THE ROADS CHALLENGE
[21] The appellants contend that the
first respondent, by virtue of the impugned rules, believes that it
can physically control
and direct traffic on and access to the public
roads in the estate. To this end the first respondent has gone ahead
and put up
signs along these roads announcing a speed restriction of
40km per hour; it has constructed speed humps aimed at slowing the
traffic
right down, it barricades the perimeter on these roads as
well as entry to the estate and only allows traffic it considers
appropriate,
to have access to the roads. The appellants maintain
that the first respondent, by acting as it does, considers that it
has exclusive
rights of control of traffic over the roads in the
estate.
[22] The appellants further contend that while the NRTA
vests the power to regulate and control traffic on public roads in
statutory
state organs and functionaries as set out above, no such
power vests in the first respondent in terms of the NRTA and the
regulations
promulgated thereunder. Thus, the first respondents’
power to control and direct traffic on public roads is governed by
it’s
rules and is not linked to any statutory provision. The
appellants’ challenge to the road rules is based on the
illegality
of the system the first respondent seeks to enforce which
is at odds with the statutory public law system which governs the
rights
of the public, including the appellants, to the public roads.
In short, the appellants assert that the first respondent’s
power to control and conduct traffic on the roads in the estate is
done so solely in terms of it’s rules and by virtue of
the
contractual arrangements it has with it’s members including the
appellants.
FIRST RESPONDENT’S CASE
[23] The first respondent, while not
disputing that the roads in the estate are public roads as defined in
section 1
of the NRTA, nonetheless contends that the relationship
between itself (being a private company) and all owners has it’s
foundation in contract – one that is freely and voluntarily
entered into by such owners including the appellants herein. The
first respondent asserts that the source of it’s power (to
control, regulate and police the roads in the estate) is purely
contractual in nature – it has no other origin or foundation.
In argument Mr du Plessis stressed that the first respondent’s
position is premised on the understanding that its rules operate as a
‘parallel system to the statutory regime prescribed
by the
provisions of the NRTA. The net result of this is that the first
respondent does not purport to utilize, invoke or usurp
the powers
under the NRTA. This being the case the first respondent does not
consider it necessary to seek any authorisation under
the NRTA for
the enforcement of its private rules. Placing reliance on the
judgment of Olsen J in
Abrahams,
supra
, Mr du
Plessis contended that it was perfectly permissible for a parallel
system, one regulated by statute and the other by contract,
to
operate alongside each other.
[24] In the course of his argument Mr
du Plessis referred us to the unreported judgment of Sutherland J in
the matter of
Bushwillow
Park Home Owners v Paulode Olioviera Fernandes & Another
[8]
.
In that matter the dispute between the parties was whether the
applicant, the governing body of the estate in which the respondents
owned a home, was vested with authority to approve or disapprove the
colour of the paint with which unit holders in the estate
could
decorate their homes. The respondents had painted lime green stripes
on their house without seeking prior authorisation from
the applicant
to do so. The applicant demanded that the respondents repaint their
house in an approved colour. With reference to
the applicant’s
MOI and its rules regarding architectural designs, specifications
relating to material and exterior finishes,
Sutherland J concluded
that the relationship between the applicant and all 591 unit-holders
was regulated by contract. Relying
on Olsen J’s findings in
Abrahams, supra
,
Sutherland J too found that the sum of their reciprocal rights and
obligations derives solely from contract. In the course of
this
judgment I intend commenting on the findings made both in
Abrahams
and Bushwillows
as
relied on by the first respondent herein. I also intend dealing with
certain other submissions advanced by Mr du Plessis in the
course of
his argument.
FINDINGS ON THE ROADS CHALLENGE
[25] While the first respondent
believes that it is free to control, regulate and police all roads
within the estate by virtue of
its Rules and the contracts concluded
with it’s members (including the appellants), the fundamental
difficulty I have with
this is that the public road status of the
roads within the estate (including all through roads) carry with it
certain public law
legal consequences. Inherent in the concept of a
public road is that the public has access to it and that the
regulatory regime
is a statutory one viz the NRTA which, as I pointed
out already, applies throughout the Republic.
[26] Invoking the
Abraham’s
decision, supra, the first respondent's answer to this (which was
accepted by the court
a
quo
) is that the
appellants agreed to \be bound by the first respondent’s regime
of control and access as provided for in it’s
Rules. At a
contractual level the position adopted by the first respondent simply
ignores the principle of legality as to what
may be contractually
arranged between parties in the face of statutory provisions which
govern the very situation contended for:
In my view, the first
respondent could quite easily have brought itself within the demands
of the legality principle. Indeed, the
need for private bodies (such
as associations and clubs like the first respondent) to regulate
traffic on and access to the public
roads is recognized by the NRTA
(s57
(6),
supra
).
Such private bodies are obliged to seek the necessary permission from
the MEC and/or the municipality concerned. In granting
such
permission the MEC and/or municipality concerned would be entitled to
impose such conditions as he/she/it may consider necessary
in the
circumstances. It is common cause that the first respondent did not
apply for such permission at any stage.
[27] I consider that this failure on
the part of the first respondent must render such Rules and the
contractual arrangement with
the members illegal. The first
respondent is forced to contend for a parallel system as postulated
by Mr du Plessis. However,
what this argument ignores is the
inherent dangers in such a dual system, one contractual and one
according to 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. The first respondent can
hardly police the roads in the estate without putting up its own road
signs such as stop signs,
yield signs, no parking or passing signs or
speed limit signs. Nor can a system which allows some persons to
drive at a speed of
60kph and others at 40kph augur well for general
law enforcement or one where unlicensed vehicles and drivers are
seemingly permitted
to drive on public roads or where persons are
required to adhere to a system of signs and practices which are at
odds with the
general public law system recognized in the NRTA and
its regulations. The fact that the relevant authorities under the
NRTA are
silent on the matter, as submitted by Mr du Plessis, does
not, in my view, make it legal.
[28] Interestingly, in argument
before us, Mr du Plessis even went so far as to submit that the first
respondent required no authorisation
under the NRTA for its private
Rules to apply. The basis of Mr du Plessis’ argument was that
on a reasonable interpretation
of the NRTA, it does not either
expressly or implicitly say anything about a private arrangement
sourced solely in contract. The
effect of this submission is that the
first respondent and it’s members are perfectly entitled to
agree contractually on
how the roads in the estate are to be policed.
This contractual arrangement according to the first respondent is
neither in conflict
with the provisions of the NRTA nor does the
first respondent attempt to arrogate to itself powers under the NRTA.
According to
the first respondent the traffic signs found on the
estate are not really traffic signs which are prescribed under
section 56
of the NRTA but rather are signs which have been
contractually agreed to between the first respondent and its members.
[29] In my view, this reasoning is deeply flawed. The
fundamental difficulty I have with this argument is that while it
serves to
protect individual interests by virtue of the parties’
rights to contract freely with each other, it ignores completely the
public interests that are here concerned with by the statute in
question – a statute that applies throughout the Republic.
It
is difficult to conceive that while public policy requires the
observance of the statute, the first respondent and its members
can
simply contract out of the obligations imposed thereunder.
COURT
A QUO’S
REASONING
[30] The basic defect in the judgment
of the court
a quo
is that it failed to enquire into whether the first respondent’s
Rules infringe upon relevant legislation and are in fact
contrary to
law. The legislation in question are those that I mentioned above,
namely the NRTA, the CPA and of course the Constitution.
The learned
Judge
a quo
confined himself to the common law principles relative to the law of
contract viz. the private law contractual aspects to which
he
referred in the judgment and in doing so he failed, with respect, to
consider the public law aspects at all. I believe that
in approaching
the matter on this restricted basis the learned Judge erred.
[31] This error becomes quite obvious
when one has regard to what was actually said by Olsen J in
Abraham,
supra
, as quoted
above. At paragraph [28] of the judgment Olsen J made the point that
the rules in that matter were “…
superimposed
on municipal law
…
“ but ”…
have
no public law content and do not involve the exercise of public law
and the performance of a public function
.”
The position is quite different in the present matter in which the
court
a quo
was required to consider the impact of Conduct Rule 7.1.2. As pointed
out by Mr Kemp, correctly in my view, this rule clearly has
public
law content and does in fact involve the exercise of public power and
functions of a number of structures and officials
such as, for
example, the municipality, traffic officials, the office of the
Directorate of Public Prosecutions (DPP) and the courts,
in the
administration of justice. As I pointed out already there are also
executive powers of the local authority vested in it
under s151(2) of
the Constitution which are directly affected by Conduct Rule 7.1.2.
This arises as a matter of law and not as
a matter of fact.
[32] At para [11] of his judgment
Topping AJ quotes a further dictum of Olsen J in
Abraham
where the learned Judge states “… In my view the
location of this case within the field of contract is correct …”
and further that “The power of the directors to grant
permission is located in the
contractual
scheme; it has no other origin or foundation
.
Whilst rule 5.1.9 reiterates that local authority rules relating to
the keeping of dogs must be obeyed, the special rules for
example
with regard to the breeds and sizes of dogs, which the parties to the
contrary had agreed to superimpose in municipal laws,
have
no public law content and … do not involve the exercise of
public power for the performance of a public function
.”
(my emphasis). In my view, a careful analysis of the above dicta
confirms and supports the contentions advanced by the
appellants in
this matter.
[33] The findings made by Olsen J in
Abraham, supra
,
apply equally to the issue which arose in the
Bushwillow’s
matter,
supra.
As in
Abrahams,
Bushwillows
had
nothing to do with the exercise of a public power grounded in public
law. Essentially the issue in that matter had to do with
the colour
of paint which was regulated by the association’s internal
rules and governed by a contractual arrangement between
the parties
and not by statute.
[34] It seems to me that none of the
provisions of the NRTA, its regulations, the Constitution and the CPA
were considered by the
court
a
quo
because they
all were considered to be trumped by the contractual model contended
for by the first respondent and premised, incorrectly
I might add, on
the
Abraham
decision. I find
myself in agreement with the submissions advanced on behalf of the
appellants to the effect that the impugned road
rules are against
public policy not because such a dispensation is
per
se
immoral but
rather it is illegal because such a dispensation is in conflict with
the dispensation created by the above statutory
provisions unless
sanctioned in terms thereof. It is well established that contractual
provisions are against public policy “…
if there is a
probability that unconscionable, immoral or illegal conduct will
result from the implementation of the provisions
according to the
tenor”
[9]
[35] To conclude on this aspect I
accordingly hold that since the roads within the estate are public
roads it is only the Minister
of Transport or someone authorise by
him, by virtue of delegated authority, who has the power to regulate
any aspect of these roads.
In the result and to the extent that the
road rules seek to authorise the first respondent to impose a speed
limit in respect of
the roads within the estate, it simply has no
authority to do so. The situation could have been different if a
determination was
made in respect of the speed limit for the roads
within the estate by a person duly authorised to do so under the
NRTA. It is common
cause that neither the Minister nor any delegated
authority made such a determination.
[36] Even more egregious is the fact that the first
respondent conducts speed trapping on the public roads within the
estate. Not
only this but it thereafter goes ahead and imposes fines
for speeding violations in the estate. The first appellant’s
daughter
was ‘caught’ speeding in the estate. By caught I
assume that she was trapped by employees of the first respondent who
are authorised by the first respondent to perform such function. No
doubt many other residents on the estate have suffered a similar
fate. Clearly, when the first respondent behaves in this manner it
acts outside the powers of the relevant authorities under the
NRTA
and the CPA. No such power vests in it by virtue of any delegation or
permission. Whatever interpretative tool one might use
(as contended
for by Mr du Plessis) insofar as the NRTA is concerned, I do not
believe that any contractual arrangement, however
well intended, can
remedy such an illegality.
THE DOMESTIC RULES
[37] The specific rules which arise
in respect of this challenge read as follows:
“
Domestic Employees
“
9.3.2 All domestic employees must comply
with instructions from Security while boarding and travelling on
official MECCEMA TWO busses.
Domestic Employees must make use of
designated bus stop points throughout the Estate. When the bus
service is unavailable, domestic
employees may walk on the estate
between the residence where working that day and their gate of exit.
9.4.1 All domestic employees must be registered on
an annual basis from the date of their first registration and are to
obtain an
access card for entry to Estate 2. Access cards will be
validated only for recognized normal business hours unless authorise
differently
for MECCEMA TWO.
9.4.3 Domestic Employees may have access to Estate
2 from Monday’s to Sunday’s but only during the hours
06h00 and 18h00,
they must personally swipe access cards/scan their
finger on the biometric reader for ingress and egress. Any variation
from this
must be authorise by MECCMA TWO in writing.
9.6 Temporary Domestic Employees
A temporary permit must be obtained through
Security for a Domestic Employee who will be working for no more than
5 days. The Domestic
Employee must hand in a valid Identity Document
every day on entry to Estate 2. This will be returned when the
Domestic Employee
leaves. The Resident employing a Domestic Employee
working for more than five days, must obtain an access card from
MECCEMA TWO.
Therefore, temporary domestic workers must be picked up
and dropped off at a gatehouse by the employer.”
[38] The case made out by the
appellants on this aspect is that the system of conduct rules
relating to domestic employees in the
estate is repressive. The
appellants contend that these rules restrict the rights of domestic
employees to use the public roads
freely. According to the appellants
Rule 9.3.2 and Rule 9.6 effectively mean that a domestic employee
cannot walk on the roads
in the estate despite the fact that these
are public roads but may only walk to the bus-stop. The time
restriction during which
domestic employees may gain access to the
estate, namely, between 06h00 and 18h00, restricts their right to
work for hours that
they may choose (such as for instance, if they
wish to work overtime). Domestic employees may only walk on the roads
in the estate
when the bus service provided for by the first
respondent is unavailable. This bus service is ordinarily provided
Monday to Saturday
at set times.
[39] The appellants further contends
that the provision in Rule 9.4.3 that “any variation from this
must be authorise by MECCEMA
TWO in writing” does not
ameliorate the infringement of rights which the entire system of
rules presents. The appellants
assert that the scheme of the rules
and the restrictions they present are unreasonable. They accordingly
argue that there is no
purpose for registering the first respondent’s
consent to work extra hours, especially given the strict access
controls to
the estate. Nor can there be any rationality to
restricting the employees’ right to movement, such as by
walking from the
employer’s home to the access gates, since
these roads are public roads.
[40] In its heads of argument the
first respondent points out that although the appellants had in their
notice of motion before
the court
a
quo
sought an order
declaring all of these rules to be invalid, when one has regard to
the affidavits however, it is apparent that
the vast majority of the
content of these Rules is unchallenged. The first respondent contends
that the appellants do not challenge
(a) the requirement that
domestic employees must comply with instructions from security while
boarding and travelling on the official
estate busses; (b) the
requirement that domestic employees must make use of designated bus
stops when catching the estate buses,
(c) the requirement that
domestic employees must be registered on an annual basis and are
required to carry an access card; and
(d) the requirement that
domestic employees must swipe their fingers or access cards for
ingress and egress from the estate.
[41] The first respondent further
contends that the appellants also accept that the bus service (a) is
dedicated to transporting
domestic employees to and from the access
gate; (b) is provided at substantial cost to the first respondent;
(c) is provided to
alleviate the burden on domestic workers and
owners/members to arrange transport from and to the homes on the
estate; (d) is provided
to ensure that normal business hours of
domestic workers are respected; and (e) ensure that domestic workers
are without delay
assisted to return home timeously at the end of the
day. In light of these factors, the first respondent contends that
the appellants
do not appear to take issue with the rules themselves
but rather with the first respondent’s implementation thereof.
[42] In the court
a
quo
Topping AJ took
the view that by giving Rules 9.3.2, 9.4.1 and 9.4.3 their literal
meaning “and context”, they merely
prescribe a set of
procedures to ensure an orderly ingress and egress of domestic
employees onto and off the estate. Thus the rules
are neither
restrictive nor unlawful.
[43] What this view ignores completely, in my opinion,
is that the rules physically deny access to domestic employees
working in
the estate save in accordance with the first respondent’s
system of ingress and egress and use of the public roads. 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. The first respondent appears to have categorized
them
into a class of people who pose a security risk to people living on
the estate. Their position within the estate is reminiscent
of the
position that prevailed in the apartheid era: while they are good
enough to perform domestic duties for their employers
on the estate,
which include the task of pushing perambulators on the roads, they
are precluded from exercising any rights derived
from public law and
the Constitution. The restrictive nature of these rules also affect
other basic rights of domestic employees
such as their rights to
human dignity, equality, freedom of association, freedom of movement,
freedom of occupation and fair labour
practices. It seems to me that
the restrictions placed on domestic employees with regard to their
movements on the roads in the
estate, flow from a misconceived notion
on the part of the first respondent that it is entitled to exercise
usurped control over
the public roads in the estate through its
conduct rules. The first respondent’s attempts to give a
different, less restrictive
meaning to the domestic rules by
asserting that the rules actually benefit the employees in terms of
their own safety and the fact
that they are able to return to their
homes timeously at the end of the working day, does not, in my view,
detract from the unreasonableness
of the rules. To the extent that
these rules restrict the rights of domestic employees from freely
being on and traversing public
roads in the estate, I consider them
to be unreasonable and unlawful.
CONCLUDING REMARKS
[44] In the course of his argument Mr
Kemp stressed that the appellants do not wish to see the traffic
control system by the first
respondent fall away or become
ineffective. What the appellants want is that the system should be a
lawful one subject to such
appropriate restraints as the state
functionaries referred to under the NRTA may see it fit to include in
granting the necessary
permissive powers to the first respondent.
Some of the suggested restraints may well include collaboration of
trapping devices,
prohibition of sanctions such as denying the rights
(in terms of access) to one’s home as a penalty for not paying
a traffic
violation (as happened to the first appellant and his
family herein), the prohibition of different speed limits, etc. The
point
was made that the appellants as members of the first respondent
are entitled to demand that the first respondent acts lawfully by
not
presenting Rules as binding when they tend to promote illegality.
Inherent in the Rules challenged is the first respondent’s
assertion that it has the right in law to control traffic and access
on public roads in the estate. However, no explanation is
provided in
the judgment of the court
a
quo
or by the first
respondent as to the source of this power. As I pointed out above the
only answer provided by the first respondent
is that it has a
contractual arrangement with the appellants 9and with other owners of
property on the estate) to deny the public
access to public roads and
to maintain such right against the public.
[45] I accordingly conclude that the
road rules as formulated by the first respondent is in direct
conflict with the relevant provisions
of the NRTA. No authorisation
whatsoever has been sought by the first respondent nor has any been
granted by the national Minister
and/or his duly authorised delegate
or the relevant MEC in charge in the Province or the Municipality
concerned. It may well be,
as suggested by Mr du Plessis, that there
are other gated estates in the country that conduct themselves in a
similar manner as
the first respondent herein insofar as the power to
regulate, control and police public roads in such estates is
concerned. If
this is the case Mr du Plessis cautioned that this
court should bristle at the idea of interpreting the NRTA as
requiring that
prior authorization should first be sought from the
relevant authorities for a Rule that has little or no impact on the
minimum
requirements prescribed under the NRTA. I disagree entirely.
In my view, courts would be failing in their duties were they to
overlook
and/or condone flagrant and deliberate contraventions
statutory provisions. If in fact there are other associations and/or
estates
in the country who, like the first respondent herein, either
through ignorance or plain arrogance on their part, have seen it fit
not to comply with statutory provisions, it’s time that they
did.
[46] Mr Kemp submitted that in the
event of this court finding that the rules are invalid that an
appropriate order would be one
suspending such declaration for a
certain period in order to afford the first respondent the
opportunity of obtaining the requisite
authorisations and consents
required in terms of the NRTA. This will be reflected in the order to
be made. It follows that the
appeal must succeed.
[47] As far as the issue of costs is concerned, I see no
reason why the appellants should not be awarded their costs given
their
substantial success in the matter.
ORDER
[48] The order I make is the
following:
(a)
The appeal is upheld to
the extent set out herebelow.
(b) The order of the court
a
quo
dismissing the
appellants’ application is set aside and replaced with the
following:
3.
It is declared that the
first respondent’s Conduct Rules 7.1.2, 7.1.3, 9.3.2, 9.4.1 and
9.4.3 are invalid but that such invalidity
is suspended for a period
of twelve (12) months to afford the first respondent an opportunity
to obtain the necessary authorisations
and/or consents under the
National Road Traffic Act, 93 of 1996
.
4.
The first respondent is
directed to pay the costs of this application, such costs to include
the costs consequent upon the employment
of two counsel.
(c) The first respondent is directed to pay the costs of
the appeal including the costs of the application for leave to
appeal,
such costs to include the costs consequent upon the
employment of two counsel.
___________________
SEEGOBIN J
___________________
CHETTY J
___________________
BEZUIDENHOUT J
COUNSEL FOR THE APPELLANTS: K J Kemp
SC (Instructed by Pather & Pather Attorneys Inc.)
COUNSEL FOR THE RESPONDENT: J du
Plessis (Instructed by Cox Yeats)
DATE OF HEARING: 7 August 2017
DATE OF JUDGMENT:
[1]
The Conduct rules are contained in a separate document which bears
the heading “MECCEMA TWO – CONDUCT RULES FOR RESIDENTS”
and which served s Annexure ‘TK7 to the first respondent’s
answering affidavit. While there was initial doubt on
the papers
whether the 2013 version of the rules were adopted, for present
purposes the parties are agreed that that may be accepted.
[2]
[2014] ZAKZDHC 36 (17 September 2004)
[3]
The decisions referred to by Topping AJ were those in the matters of
Sasfin (Pty) Ltd v Beukes
1989 (1) SA 1
(A) at 7 I-E, Eastwood v
Shepstone
1902 TS 294
at 302. Botha (now Griessel) v Financescrediet
(Pty) Ltd
1989 (3) SA 773
(A), and Juglal N O and Another v Shoprite
Checkers (Pty) Ltd t/a OK Franchise Division
2004 (5) SA 248
(SCA)
[12]. The general principle laid down in these cases is that while
public policy generally favours the utmost freedom of
contract, it
takes into account (a) the necessity of doing simple justice between
man and (b) that a court’s power to declare
contracts contrary
to public policy should be exercised sparingly and only in cases in
which the impropriety of the transactions
and the element of public
harm are manifest.
[4]
Preamble to the NRTA
[5]
Regulation 292(a), National Road Traffic Regulations, 17/03/2000
[6]
Constitution of the Republic of South Africa, 1996
[7]
Section 31(g) of the NRTA bears reference
[8]
Case No. 2014/31526, Gauteng Local Division
Johannesburg
[9]
Juglal NO and Another v Shoprite Checkers (Pty)
Ltd t/a OK Franchise Division, supra, par [12]