A fork in the road

In arguing the point that roads in gated estates are private roads and, therefore, do not fall under the regulatory framework of the National Road Traffic Act 93 of 1996, Tim Pearce also finds it necessary to dispel the notion that the appealed judgment of the KwaZulu-Natal Division of the High Court in the matter of Singh and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and Others 2018 (1) SA 615 (KZP) is authority for saying that the roads in gated estates are not ‘private’ but ‘public’ roads.

Regarding the Singh case he makes the point that the court was not called on to consider and decide whether the Mount Edgecombe Association’s Estate roads were private or public roads, as the Mount Edgecombe Association had in fact declared their roads to be public roads.  Authority in answering the question as to when roads on private land become 'public' roads in terms of the Act is found elsewhere.  The Act defines a ‘public road’ as follows: ‘Any road … 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.’ In the case of R v Papenfus 1970 (1) SA 371 (R) it was held that the test in deciding whether a place is 'used by the public' should be whether the user requires consent from the owner of the estate.

He finds legal authority in the cases of S v Christodoulou 1967 (3) SA 269 (N),S v Rabe 1973 (2) SA 305 (CPO) and S v Dillon 1983 (4) SA 877 (N) to support the interpretation that gated estate roads are private roads as long as the homeowners association declares them as such and stops the public (in the broader sense) as opposed to the (narrower sense) of service personnel, guests, tradesmen and delivery personnel from using them. 

Full article in August 2018 De Rebus

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