Do traffic laws apply in retirement estates?

by antoinette pombo
December 14, 2016

Retirement Estates‘It’s alarming that a large number of retirement estates in South Africa incorrectly view the roads in the estate as “private” roads’, says Arrive Alive.

In many instances, the estates’ regulatory signage and road markings also don’t comply with the requirements of the National Road Traffic Act and are therefore illegal.

Arrive Alive explains the basics of the law when it comes to retirement estates and traffic laws in SA here…

The misapplication of the law is primarily in relation to the driving of unlicensed vehicles and drivers.

Traffic control in the estates is generally viewed as an internal function and conduct issue regulated by estate management through security service providers. This is incorrect.

Most, if not all roads within retirement estates are not “private roads” but “public roads” in terms of the law and they are actually regulated by the National Road Traffic Act 93 of 1996 (NRTA).  Non-compliance is still a criminal offence and will soon be regulated by AARTO – the demerit point system.

The controls that the Home Owners’ Associations enforce through contractual arrangements with residents, land owners, visitors and other road users in the estates cannot contradict or replace the NRTA or law enforcement.

The Administrative Adjudication of Road Traffic Offences Act (AARTO)

AARTO will change the enforcement of traffic laws in future. It’s better known as the “penalty point demerit system” that can lead to the suspension and the withdrawal of drivers’ licenses.

A retirement estate is merely a form of township development, with security and private community amenities. However, it still retains all the characteristics of an urban township and residential area, by law. These fall into the jurisdiction of the local authority.

The fact that permission must be requested by the general public before using the roads in the retirement estate does not mean the roads are not “public roads” in terms of the law. Residents, property owners and service providers also have a right of access to the estate and protection of the NRTA.

What is a Public Road?

A “public road” is defined as any road, street or thoroughfare or any other place which is commonly used by the public or any section thereof…

Furthermore, various High Court decisions in the past confirm and entrench the intention of the legislature, making it clear that public roads include all roads used by the public even where there is no right of general entry and permission is required.

The court has also declared that the definition of ‘public road’ has two separate disjunctive stipulations in its definition. Firstly ‘…which is commonly used by the public or section thereof’, and secondly ‘…to which the public or section thereof have a right of access’. These must be read separately as two independent alternative definitions.

The Courts and Public Roads

The error estate developers and home owner associations make is that they assume that because the development as a township has the right to gate the property and control access to it, the roads within the estate are then “private roads” in terms of traffic laws.

As an example, if someone allows a young unlicensed child to drive a car, ride a quad bike or golf cart in the estate, both the owner of the vehicle and the child are contravening the NRTA and are liable for prosecution.

Furthermore, the parent or even the body corporate, could be liable for prosecution and could also incur more serious consequences for culpable homicide and a civil claim if someone is killed on an estate road, that is not lawfully regulated.

Most estates regulate their internal road conduct effectively, but if a person is killed or injured in a motor collision on one of these roads the legal implications will raise legal issues; such as whether the road is a public or private road, if the regulatory signage and markings are in compliance with legislation and whether any other person or party was responsible through negligence, other than the driver.

Take as an example a situation on a road in a gated estate with its own so-called “regulatory sign” stipulating a speed of 40 km/h displayed on a custom green or brown painted sign and a fatal collision occurs on a blind rise, where the road is not the right width, it has no road markings and the driver that caused the crash is 14 years old riding an unregistered quad bike. The parent drives behind the child in a vehicle and both were driving at 60 km/h at the time of the accident. Who is going to be sued and prosecuted, the motor cyclist, the Home Owners Association, the parent that allowed the unlicensed child to drive or all these parties?

What is the legal speed  – 40 km/h or 60 km/h? Is the wrong signage or absent road markings the cause and are the signs legal? Is the fine that the Home Owners Association levied for both drivers “speeding” lawful?

The tragedy becomes one big legal mess.

Traffic control and law enforcement cannot be carried out by estate management or private security service providers, unless they comply with the NRTA and the persons enforcing the law are authorised to do so in terms of the NRTA and Criminal Procedure Act, or AARTO.

For signage to be lawful, it must be properly authorised and displayed in terms of legislation. The minister, the MEC or any person authorised by the minister or MEC, or the relevant local authority in respect of any public road within the jurisdiction of that local authority, may authorise the developer or the Home Owners Association in writing to display road traffic signs in terms of the NRTA in the gated estate.

These traffic signs must all be in conformity with the prescribed colours, dimensions and method of display. Advertising material used in conjunction with a road traffic sign is prohibited.

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