About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 30
|
|
Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh and Others (323/2018) [2019] ZASCA 30; 2019 (4) SA 471 (SCA) (28 March 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 323/2018
In
the matter between:
MOUNT
EDGECOMBE COUNTRY CLUB ESTATE
MANAGEMENT
ASSOCIATION II (RF)
NPC APPELLANT
and
NIEMESH
SINGH FIRST
RESPONDENT
MUNSHURAI
MADHANLAL RAMANDH SECOND
RESPONDENT
MEC
FOR THE DEPARTMENT OF TRANSPORT,
KWAZULU-NATAL THIRD
RESPONDENT
ETHEKWINI
MUNICIPALITY FOURTH
RESPONDENT
MINISTER
OF
TRANSPORT FIFTH
RESPONDENT
Neutral
citation:
Mount Edgecombe Country
Club Estate Management Association II (RF) NPC v Singh & others
(323/2018)
[2019] ZASCA 30
(28 March
2019)
Bench:
Ponnan, Salduker, Swain and Schippers
JJA and Rogers AJA
Heard:
5 March 2019
Delivered:
28 March 2019
Summary:
Whether roads within a private housing
estate public roads as defined in the
National Road Traffic Act 93 of
1996
– whether conduct rules ordaining a speed limit of 40 km/h
within the estate unlawful.
ORDER
On
appeal from
: KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Seegobin J (Chetty and Bezuidenhout
JJ concurring) sitting as a full
court:
1. The appeal is upheld
with costs, including those consequent upon the employment of two
counsel, to be paid by the respondents
jointly and severally.
2. The order of the full
court is set aside and in its stead is substituted the following:
‘
(a)
Save for declaring Conduct Rules 9.3.2, 9.4.1 and 9.4.3 of the Mount
Edgecombe Country Club Estate Two unlawful, the appeal
is otherwise
dismissed.
(b) The appellants shall,
jointly and severally, pay 80% of the respondent’s costs,
including those of two counsel.’
JUDGMENT
Ponnan
JA (Salduker, Swain and Schippers JJA and Rogers AJA concurring):
[1]
The appellant, the Mount Edgecombe Country Club Estate Management
Association II (RF) NPC (the Association), a non-profit company,
is
an association of homeowners. In terms of the Association’s
Memorandum of Incorporation (MOI), membership of the Association
is
obligatory for all owners of residential property situated within the
Mount Edgecombe Country Club Estate Two (the estate).
The MOI
provides that in the event of any residential unit being owned by a
close corporation, company or trust, such juristic
person shall
nominate one natural person to be a member of the Association. The
first respondent, Mr Niemesh Singh, and the second
respondent, Mr
Munshurai Madhanlal Ramandh, are residents and property owners
(through juristic entities) within the estate.
[2]
The estate, which is situated in and around a golf course, comprises
some 890 freehold and sectional title residential units.
It consists
of extensive common property, including open areas, dams, ponds and
rivulets, as also facilities for various sporting
activities, such as
squash, bowling, tennis and fishing. It is serviced by a network of
roads and pathways for the use of motorised
vehicles, pedestrians and
golf carts. The common facilities on the estate include a club house
and a venue for conferences, corporate
events and weddings. It is
also home to several species of small animals, which are protected
within the confines of the estate.
[3]
In accordance with clause 20.1 of the MOI, the directors of the
Association determined that the speed limit on the roads within
the
estate shall be 40 km/h.
[1]
During
October 2013, the daughter of the first respondent was issued with
three contravention notices for exceeding that limit.
The first two
were issued on the 19
th
when she allegedly drove at 69 and 65 km/h respectively. The third
was issued on the 29
th
,
when she was clocked travelling at 67 km/h. In each of the three
instances a penalty of R1 500 was imposed. The amounts,
which
were deemed by the conduct rules to be part of the levy due by the
owner, were debited to the first respondent’s account.
[2]
The
first respondent appealed against the first two penalties, but not
the third. It was asserted in the appeal that his son had
been
involved in a motor vehicle collision outside the precinct of the
estate and that his daughter had to urgently render assistance.
The
appeal succeeded in relation to one of the two contraventions. The
first respondent was thus required to pay R3 000 in
penalties in
accordance with the Association’s ‘pay first argue later’
regime.
[3]
The
first respondent refused to pay, consequently the Association
deactivated the access cards and biometric access of the first
respondent and members of his household.
[4]
On 1 February 2014, the first respondent moved the High Court,
Kwazulu-Natal Local Division, Durban for urgent spoliatory relief.
Gyanda J issued a
rule nisi
directing the Association ‘to
re-activate the [first respondent’s] access cards and the
biometric access of his family’.
Whilst finalisation of that
application was still pending, on 31 March 2014 the respondents
launched a challenge to three categories
of the Association’s
conduct rules - loosely described as the ‘road rules’,
‘contractor rules’ and
‘domestic worker rules’.
The following relief was sought:
‘
1.
It is declared that all the First Respondent’s Rules of
Conduct:
1.1 namely, rules 7.1.2
and 7.3.2 [the road rules], which authorise or empower the First
Respondent to police the road network within
the Mount Edgecombe
Country Club Estate Two, including the issuing of speeding fines
and/or fines for otherwise contravening any
law governing the control
of traffic on public roads, and
1.2 namely, rules 2.1,
4.7 and 4.8.1 [the contractor rules], which restrict the free choice
of the owners and residents on the Mount
Edgecombe Country Club
Estate Two with regard to which contractors and/or service providers
they may utilise or employ, within
the bounds of the Mount Edgecombe
Country Club Estate Two, and
1.3 namely, rules 9.3.2,
9.4.1 and 9.4.3 [the domestic worker rules], which restrict the hours
of employment of domestic employees
of owners and residents on the
Mount Edgecombe Country Club Estate Two and/or which restrict the
rights of such domestic employees
to traverse the public road network
over the estate by walking thereon or otherwise,
are unlawful and are to
be regarded as
pro non scripto
.
2. The First Respondent
is directed to pay the costs of this application, on an
attorney-and-client scale, such costs to include
those consequent
upon the employment of two counsel.
3. The
Second, Third and Fourth respondents, or any one or more of them,
is/are directed to pay the costs of this application, on
an
attorney-and-client scale, such costs to include those consequent
upon the employment of two counsel, only in the event of any
one or
more of them opposing this application.’
[5]
The Association, the Minister of Transport, the MEC for the
Department of Transport KwaZulu-Natal and the Ethekwini Municipality,
were cited as the first to fourth respondents respectively. Only the
Association opposed the application. No relief was sought
against the
other respondents and they elected not to participate in the
proceedings. The Association also launched a counter-application,
which is not relevant for present purposes. The matter came before
Topping AJ, who dismissed both the application and
counter-application,
but confirmed the
rule
nisi
issued by Gyanda J in the
spoliation application.
[6]
The respondents appealed, with the leave of Topping AJ, to the full
court against the dismissal of the application. The respondents
effectively abandoned the challenge to the contractor rules before
the full court. The appeal succeeded before Seegobin J (Chetty
and
Bezuidenhout JJ concurring) in respect of the road and domestic
worker rules. The full court issued the following order:
‘
(a)
The appeal is upheld to the extent set out here below.
(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.’
[7]
With the special leave of this court the Association appeals against
the order of the full court insofar as it relates to the
road rules,
namely
rules 7.1.2
and
7.3.2
(erroneously reflected in the order of
the full court as 7.1.3). The present appeal is thus only concerned
with whether or not
rules 7.1.2
and 7.3.2 ‘are unlawful and are
to be regarded as
pro non scripto
’. Those rules provide:
‘
7.1.2
The speed limit throughout [the estate] is 40 km/h. Any person found
driving in excess of 40 km/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 additional caution when using the
roads.
7.3.2
Operating any vehicle in contravention of
the
National Road Traffic Act within
[the estate] is prohibited.’
[8]
With the leave of the President of this court, the Association of
Residential Communities CC, was admitted as an
amicus
curiae.
The
amicus
,
which was established in 2008, is a consultative and representative
industry body. It has a membership of over 300 estates across
South
Africa and is representative of 58% of the market. The amicus filed
heads of argument and was represented by counsel at the
hearing of
the appeal. It advanced argument in support of the Association that
the appeal should succeed.
[9]
In the courts below counsel for the appellants accepted that ‘the
roads in question are public roads for the purposes
of the NRTA’.
Accordingly, the full court analysed the roads challenge on the basis
and assumption that the roads in question
were public roads and
subject to the National Road Traffic Act 93 of 1996 (the Act). Before
this court it was contended that the
concession ‘appears to
have been erroneously made, and the appellant will seek to withdraw
it.’
[10]
Here, we are concerned with a legal concession. It is trite that this
court is not bound by a legal concession if it considers
the
concession to be wrong in law.
[4]
In
Alexkor
Ltd and another v Richtersveld Community and others
,
the Constitutional Court pointed out:
‘
The
applicable rule is that enunciated in
Paddock
Motors (Pty) Ltd v Igesund
.
In that case, the Appellate Division held that a litigant who had
expressly abandoned a legal contention in a court below was
entitled
to revive the contention on appeal. The rationale for this rule is
that the duty of an appeal court is to ascertain whether
the lower
court reached a correct conclusion on the case before it. To prevent
the appeal court from considering a legal contention
abandoned in a
court below might prevent it from performing this duty. This could
lead to an intolerable situation, if the appeal
court were bound by a
mistake of law on the part of a litigant. The result would be a
confirmation of a decision that is clearly
wrong. As the court put
it: “If the contention the appellant now seeks to revive is
good, and the other two bad, it means
that this Court, by refusing to
investigate it, would be upholding a wrong order.”’
[5]
[11]
It is therefore open to the appellant to raise in this court the
legal issue that had been conceded below.
[6]
The
withdrawal of the concession can cause the respondents no prejudice.
The facts were fully canvassed in the affidavits and the
respondents
were alive to the need to establish that the roads within the estate
were public roads. In its opposing papers the
Association disputed
the conclusion that the estate roads were ‘public roads’
for purposes of the Act. The legal concession
was made only after all
the affidavits were filed. It was for the present respondents to
allege facts from which the conclusion
could be drawn that the estate
roads are ‘public roads for purposes of the Act.
[12]
Section 1 of the Act defines a ‘public road’ as ‘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
has a
right of access . . . .’ The test to be applied in terms of the
definition ‘is whether a section of the public
at least
commonly (i.e. generally or universally – cf.
Shorter
Oxford English Dictionary
)
uses the area or has a right of access (as opposed to access by
invitation direct or implied) thereto’.
[7]
As
Corbett J observed in
S v Rabe
:
‘
It
is only places which are commonly used by the public (or a section
thereof) or to which the public (or a section thereof) have
a right
of access which fall within the definition. As far as “use”
by the public is concerned, it is clearly used
for driving a vehicle
thereon, or thereover, that is intended. Furthermore in this context
the word “commonly” (Afrikaans
text: ‘gewoonweg’)
should be construed to mean “as a usual circumstance; as a
general thing; in ordinary cases;
usually, ordinarily, generally”
(see meaning No. 5 in
Oxford
English Dictionary
).’
[8]
[13]
Applying the definition of ‘public road’, thus
interpreted, to the present case, it seems to me that the roads
within the estate are not public roads. The estate is a private
township. In terms of the township approval: ‘[t]he owner
shall
construct all the roads in the township to the satisfaction of the
local authority’. The approval further provided:
‘
The
owner of the erf, any further subdivision, or any unit thereon shall
have a general right of access over Erven 2888-2891 subject
to
whatever rules, conditions and restrictions as are laid down from
time to time by the “Home Owners’ Association”
for
the purpose of ensuring proper control and administration of the use
and enjoyment thereof.’
[14]
At the inception of the estate, the roads within the estate were
private roads. That never changed. The roads did not thereafter
acquire the character of public roads. The estate is enclosed by a
two metre high palisade fence, which is topped with electrified
security wiring. All ingress and egress to the estate is strictly
controlled. Gated access points are controlled by security guards.
Visitors are required to provide the guards with an access code to
gain entry to the estate. In respect of owners, biometric scanning
is
employed. This de facto situation accords with clause 34.9 of the
MOI, which provides that the Association is obliged to provide
such
security in the estate as it deems appropriate, ‘including such
security as may be required to control egress and ingress
to the
Estate, so that only Members, Lessees of Units, guests or invitees,
authorised representatives, employees of the [Association]
and any
other duly authorised persons may be admitted’.
[15]
The general public does not have access to the roads within the
estate. In this context the word ‘public’ does
not
include persons who are there with the permission of the owners of
property within the estate.
[9]
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.
[10]
[16]
In
Ethekwini
Municipality v Brooks
[11]
this
court had occasion to consider
whether
a servitude of right of way over the land of the first
respondent, Ms Brooks, is to be classified as a ‘public
street’
as defined in s 1 of the Local Authorities (Natal) Ordinance 25
of 1974. ‘Public street’ is there
defined as ‘any
street’ which:
‘
(
a
)
has been established by a local authority or other competent
authority as a public street;
(
b
) has been taken
over by or vested in a local authority as a public street in terms of
any law;
(
c
) the public has
acquired the right to use; or
(
d
) which is shown
on a general plan or diagram of any private township situate in the
area of a local authority filed in the Deeds
Registry or the
Surveyor-General’s Office and to which the owners of erven or
lots in such township have a common right of
use.’
Ms
Brooks contended that ‘the only people who may legitimately use
it are those in whose favour the right of way servitude
was created
and this is a finite and limited class of people.’ In agreeing
with that contention, this court held (para 23):
‘
I
am of the view that the evidence adduced on behalf of the
municipality falls far short of establishing a right on the part of
the general public to use the road in question. At best for the
municipality, the evidence establishes that some members of the
public, or persons other than the owners of subdivisions, may, over
the years, have used the road from time to time without let
or
hindrance. However, the evidence fails to establish whether or not
those members of the public who used Nyala Drive over the
years fell
into the extended category of lawful users of the servitude of right
of way described by Voet in the passage referred
to above. It
follows, therefore, that the municipality has failed to prove that
the public has acquired a right to use the portion
of Nyala Drive
that forms part of the property of Mrs Brooks.’
[12]
[17]
In my view the same considerations apply in respect of the road
network within the estate. Whilst it is correct that some members
of
the public (or persons other than those residing in the estate) are
permitted to enter the estate, there is no right on the
part of the
general public or any section thereof to traverse the roads. This has
been the historical position since the estate
was first established.
The non-owners who are permitted to enter the estate are persons who
are there with the authority and permission
of the owners, and are
not to be regarded as forming part of the ‘public’ for
the purposes of the definition of ‘public
road’.
[18]
However, even on the assumption that the roads within the estate are
public roads, the approach of the full court cannot be
supported. The
full court reasoned that in agreeing, as between members, speed
limits, the erection of traffic signs and installation
of speed
humps, the appellant was purporting to usurp the functions reserved
exclusively for the authorities under the Act, and
that its conduct
in so doing was unlawful.
[19]
When the respondents chose to purchase property within the estate and
become members of the Association, they agreed to be
bound by its
rules. The relationship between the Association and the respondents
is thus contractual in nature. The conduct rules,
and the
restrictions imposed by them, are private ones, entered into
voluntarily when an owner elects to buy property within the
estate.
By agreement, the owners of property within the estate acknowledge
that they and their invitees are only entitled to use
the roads laid
out within the estate subject to the conduct rules. Any third party
invitee only gains access to the estate with
the prior consent of the
owner concerned. Upon gaining access to the estate, responsibility
for any breach of the conduct rules
by the invitee is that of the
owner. In that regard clause 21.2 of the MOI provides:
‘
In
the event of any breach of the conduct rules for residents by any
Lessees of Units, guests or invitees, authorised representatives
or
any other duly authorised person such breach shall be deemed to have
been committed by the Member and the Directors shall be
entitled to
take such action as they may deem fit against the responsible
Member.’
[20]
Any breach of the conduct rules is therefore a matter strictly
between the owner concerned and the Association. No sanction
is
imposed on the third party. The third party’s adherence to the
rules is thus a matter for the owner who invited him or
her onto the
estate. It is the owner who has to ensure that the third-party
complies with the conduct rules or bear the consequence
of any
sanction imposed in consequence of such non-compliance. There is
nothing in the rules which provides for any consequence
for a third
party who fails to comply therewith. The control of the speed limit
within the estate therefore falls squarely within
the provisions of
the contract concluded between the Association and the owners of the
properties within the estate. The rules
are obviously enforceable
only as between the contracting parties, and not against the public
at large.
[21]
It follows that the Association is not endeavouring to impose the
provisions of the Act upon third parties. Neither do the
rules
purport to exonerate the parties from, or exclude the operation of,
the Act. Once it is accepted that the rules are private
ones, the
respondents’ argument that the Association is usurping the
functions of the recognised authorities or contravening
the
provisions of the Act cannot be sustained. The appellant was not, in
crafting and applying the rules, purporting to carry out
any
functions under the Act. Rule 7.1.2 does no more than prescribe that
‘the speed limit throughout [the estate] is 40 km/h’
and
that ‘any person found driving in excess of 40 km/h, will be
subject to a penalty’. Regard being had to the MOI,
the
directors of the Association are entitled to make rules for the ‘use
and maintenance’ of the roads (clause 20.2.3)
and to ‘impose
a system of penalties’ for a breach of such rules (clause
21.2).
[22]
It cannot be said that ordaining a lower speed limit within the
estate than that prescribed by national legislation goes beyond
promoting, advancing and protecting the interests of the respondent’s
members or is unreasonable. This is especially so given
the presence
of children, pedestrians and animals (both domesticated and
undomesticated) upon or in the immediate vicinity of the
roads
themselves. Rule 7.3.2 goes no further than to record that the
operating of any vehicles in contravention of the Act within
the
estate is prohibited. I fail to see why that would be objectionable.
[23]
In
Abraham
& another v Mount Edgecombe Country Club Estate Management
Association Two (RF) (NPC)
,
[13]
Olsen
J had occasion to consider rule 5 of the conduct rules of this very
estate.
[14]
In
that matter the applicants sought permission from the Association to
keep a Saint Bernard dog on the estate, which was refused.
They
then applied to court to review and set aside the refusal. Olsen J
stated:
‘
[23]
In my view the location of this case within the field of contract is
correct. By contract concluded between all the residents
and
the respondent, no dogs are allowed on the estate unless permission
is granted by the respondent. 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 laws 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 contract have agreed to superimpose
on municipal law, have no public law content and do
not involve the
exercise of public power or the performance of a public function.
The restrictions imposed by the rules are
private ones, entered into
voluntarily when electing to buy in the estate administered by the
respondent, rather than elsewhere;
presumably motivated
inter
alia
by the particular attractions
which the estate offers by reason of the controls imposed on it by
contract. In my view PAJA
finds no application in this case.’
[24]
The approach adopted by Olsen J was endorsed by Sutherland J in
Bushwillow
Park Home Owners v Paulode Olioviera Fernandes & Another.
[15]
There
the dispute between the parties concerned the authority of the
governing body of an estate to approve or disapprove the colour
of
paint with which unitholders in the estate may decorate their homes.
The unitholder had seen fit to paint lime green stripes
on the unit
in question. The governing body contended that it did not authorise
that colour and demanded that the house be repainted
in an approved
colour. The application by the governing body succeeded.
Sutherland J stated: ‘The relationship between
the applicant
and all the 591 unitholders is regulated by contract. Self-evidently,
the sum of their reciprocal rights and obligations
derives solely
from contract.’
[25]
Those principles apply equally in respect of the regulation of the
roads within the estate. The mere fact that the rules provide
additional contractual requirements for the operation of vehicles on
those roads does not mean that the rules themselves have a
public law
content. Nor does the enforcement of those contractual obligations
involve the usurpation of public power. Statutory
obligations on
members of the public generally are obviously enforceable by the
relevant authorities. Contractually binding regulations
are
enforceable by the parties to the contract, and against them only.
There is therefore no conflict between the Act and the rules
of the
Association, agreed to privately. The position may have been
different if the Association had sought to appropriate powers
under
the Act. That it did not do. With notice to its members and with
their agreement, the Association, for good reason, chose
to impose a
consensual limit of 40 km/h. That left untouched the limit of 60
km/h. In that, the mischief sought to be addressed
by the Act was
achieved, inasmuch as 40 is less than 60 km/h. Accordingly, the full
court ought to have found that approval under
the Act by the relevant
authorities for purposes of contractual self-regulation was not
required. There was thus no warrant for
the finding by the full court
that the Association had to first seek and obtain permission from the
MEC or the local municipality.
[26]
It follows that the appeal must succeed. The order of the full court
accordingly falls to be amended by the deletion of the
reference
therein to Rules 7.1.2 and 7.1.3 (or more accurately 7.3.2).
[27]
That leaves costs: The costs in this court present no difficulty; it
must follow the result and it was agreed that it should
include those
consequent upon the employment of two counsel. Topping J directed the
parties to pay their own costs. There was no
suggestion that any
basis exists for interference with that order. Insofar as the costs
before the full court are concerned, the
respondents succeeded in
their challenge to the domestic worker rules. Thus although the
Association has had substantial success
in the litigation, the costs
relating to the domestic worker rules call for particular
consideration. The full court approached
the enquiry thus: ‘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. . . . In the light of the above, it is
to the roads challenge
that I now turn to.’ The domestic worker
rules challenge occupied less than five of the approximately 30 pages
in the judgment
of the full court. What is more, a perusal of the
record and both judgments suggests that roughly less than 20% of the
costs related
to this aspect. The order of costs must take account of
this.
[28]
In the result:
1. The appeal is upheld
with costs, including those consequent upon the employment of two
counsel, to be paid by the respondents
jointly and severally.
2. The order of the full
court is set aside and in its stead is substituted the following:
‘
(a)
Save for declaring Conduct Rules 9.3.2, 9.4.1 and 9.4.3 of the Mount
Edgecombe Country Club Estate Two unlawful, the appeal
is otherwise
dismissed.
(b) The appellants shall,
jointly and severally, pay 80% of the respondent’s costs,
including those of two counsel.’
_________________
V M Ponnan
Judge of Appeal
APPEARANCES:
For
Appellant: A Stokes SC
(with
him M Du Plessis SC and S Pudifin-Jones)
Instructed
by:
Cox
Yeats, Umhlanga Rocks
Symington
De Kok Attorneys, Bloemfontein
For
First and Second Respondent: KJ Kemp SC (with him HS Gani)
Instructed
by:
Pather
& Pather Attorneys Inc., Durban
Claude
Reid Inc., Bloemfontein
For
the Amicus Curiae: LJ De Bruyn
Instructed
by:
Werksmans
Attorneys, Sandton
Symington
& De Kok Attorneys, Bloemfontein
[1]
Clause
20.1 provides: ‘The Directors shall have the power to make
rules from time to time as well as the power to substitute,
add to,
amend or repeal same, for the management, control, administration,
use and enjoyment of the Estate, for the purpose of
giving proper
effect to the provisions of the Memorandum and for any other purpose
which powers shall include the right to impose
reasonable financial
penalties to be paid by those Members who fail to comply with the
provisions of the Memorandum or the rules.’
[2]
Clause
21.1.1 of the MOI provides: ‘The Directors may 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 so doing to the Member concerned which
amounts shall be
deemed to be a debt owing by the Members to the Company. In addition
the Directors may impose a system of penalties.
The amounts of such
penalties shall be determined by the Board from time to time.’
And rule 13.1.11
provides: ‘Penalties imposed for the breach of or
non-compliance with the rules shall be deemed to be part
of the levy
due by the owner.’
[3]
Rule
13.1.10 provides: ‘Should any resident be aggrieved by any
decision made by the Estate Management, he/she may, after
having
first paid the penalty, lodge an appeal within 7 days of the penalty
being paid, to the Board through the Estate Manager.
The appeal
should contain sufficient facts and/or information relating to the
matter which the resident concerned believes would
justify a finding
by the Board which is different to that imposed by the Estate
Management.’
[4]
See
Matatiele
Municipality & others v President of the RSA & others
2006 (5) SA 47
(CC) para 67. The Constitutional Court added:
‘
Indeed,
in
Azanian Peoples Organisation (AZAPO)
and others v President of the Republic of South Africa and others
,
this Court firmly rejected the proposition that it is bound by an
incorrect legal concession, holding that “if that concession
was wrong in law [it] would have no hesitation whatsoever in
rejecting it.” Were it to be otherwise, this could lead to
an
intolerable situation where this Court would be bound by a mistake
of law on the part of a litigant. The result would be the
certification of law or conduct as consistent with the Constitution
when the law or conduct, in fact, is inconsistent with the
Constitution. This would be contrary to the provisions of s 2 of the
Constitution which provides that the “Constitution
is the
supreme law of the Republic; law or conduct inconsistent with it is
invalid.”’
[5]
Alexkor
Ltd and another v Richtersveld Community and others
[2003] ZACC 18
;
2004
(5) SA 460
;
2003 (12) BCLR 1301
(CC) para 43.
[6]
See
Saayman
v Road Accident Fund
[2010]
ZASCA 123
;
2011 (1) SA 106
(SCA) at para 12.
[7]
S
v Coetzee
1970
(2) SA 445
(E) at 447H.
[8]
S
v Rabe
[1973]
2 All SA 640
(C) at 642-643.
[9]
R
v Papenfus
1970
(1) SA 371
(R) at 376.
[10]
Ibid
at 377; see also
Hallett
v DPP
[2011]
EWHC 488
;
Harriot
v DPP
[2005]
EWHC 965
;
Harrison
v Hill
[1932]
JC 13.
[11]
Ethekwini
Municipality v Brooks & another
[2010] ZASCA 74; 2010 (4) SA 586 (SCA); [2010] 4 All SA 164 (SCA).
[12]
See
also
Berdur
Properties (Pty) Ltd v 76 Commercial Road (Pty) Ltd
1998 (4) SA 62
(D) at 68G-69B.
[13]
Abraham
& another v Mount Edgecombe Country Club Estate Management
Association Two (RF) (NPC)
JOL
32322 (KZD).
[14]
Rule
5 is headed ‘Pet Control’. Rule 5.1, which
pertained to dogs, provides:
‘
5.1.1
Written permission must first be obtained from [the Association]
before a dog may be brought onto Estate 2. This permission
will not be unreasonably withheld provided compliance with the
following rules is observed.
. . .
5.1.3 Dogs must be small
and not be of a known aggressive breed. In regard to the size
of dogs, they should be of a breed
which will not exceed 20 kg when
fully grown.’
[15]
Bushwillow
Park Home Owners v Paulode Olioviera Fernandes & Another
[2015]
ZAGPJHC 250.