Page 5 - KZN Business Sense 3.6

KZN

KwaZulu-Natal
Business Chambers Council
REGULATION OF ROADS IN SECURE ESTATES PROPERTY

Country Club Estate Management MECCEMA Two to enforce the e Appeal Court held that the SERVICES
Robin Westley -
Partner, Cox Association Two (RF) (NPC) rules that were challenged by public road status of the roads
Yeats Attorneys and Others, Case Number Singh. Accordingly, Singh within the Estate carry with it ox Yeats boasts some of the
AR575/2016 handed down on appealed the First Judgement legal consequences arising out of C top property lawyers in
17th November 2017. is was an which appeal was heard by a full public law and the regulatory South Africa. eir
appeal of the decision of Topping bench of the KwaZulu-Natal High regime is a statutory one, arising specialist team combines their
AJ in the KwaZulu-Natal High Court (the ‘Appeal Court’). from the NRTA. MECCEMA Two knowledge and experience of
Court (the First Judgement). e could have sought permission property law and conveyancing
judgement has proved to be of e primary focus of the from the MEC, which it did not.
great interest to the owners judgment of the Appeal Court e failure of MECCEMA Two to with innovative ideas to maximise
associations of the various secured centred around the Road Rules. seek permission from the MEC prot potential. Services include:
• Acquisition, sale and transfer
estates around South Africa as it e counsel for Singh argued that must render the rules and the of commercial, industrial and
contractual arrangement with the
the roads on the Estate were
is the rst major judgement that
O ver questions the freedom of the public roads. In terms of the members illegal. To the extent that residential properties
• Leases, mortgages and
the
NRTA, it is only the national
owners associations to regulate the
the Road Rules seek to authorise
servitudes
past
occupy properties on the estate
Minister) who may prescribe
couple of decades, the number of conduct of persons who own or Minister of Transport (the MECCEMA Two to impose a • Retirement home schemes
speed limit on the roads within
secure estates in South Africa, or access the estate from time to signs, signals and markings on the Estate, MECCEMA Two has • Sectional title schemes
both residential and commercial/ time and the right of owners public roads and who may no authority to do so. e • Sectional title arbitration
industrial, have increased associations to regulate conduct prescribe speed limits for the position would be dierent if a • Share block developments and
exponentially. is has been on privately owned roads that may various categories of roads. e determination were made by a conversions to sectional titles
largely driven by security concerns nevertheless be subject to the NRTA provides that the MEC may person authorised to do so under • Time-sharing operations
because of the escalating crime National Road Trac Act, 93 of authorise an association or club the NRTA but neither the Minister • Town planning, appeals and
rate in the country. 1996 (the NRTA). to display any road trac signs, nor any delegated authority had rezoning applications
subject to such conditions as the done so. • Township development and
Each estate is administered by ree categories of the conduct MEC may determine. Accordingly, subdivision of land
an owners’ association, which is rules of the Mount Edgecombe the counsel for Singh argued that In conclusion, the Appeal Court • The impact of VAT on property
either established as a non-prot Country Club Estate Management MECCEMA Two had no power to held that the Road Rules were in transactions
company, with a memorandum Association Two (RF) (NPC) regulate and control trac on the direct conict with the relevant • Owners Association/Communal
of incorporation governing the (MECCEMA Two) were public roads in the Estate. provisions of the NRTA. No Schemes establishment
functioning of the association or challenged by Nimesh Singh authorisation had been sought by • Operational issues
as a common law association, with (Singh), namely the ‘Road Rules’, e counsel for MECCEMA MECCEMA Two nor been • Dispute resolution
a constitution governing the which permit MECCEMA Two to Two did not dispute that the roads granted by the Minister.
functioning of the association. control the roads on the Mount on the Estate were public roads for Accordingly, the Appeal Court e Cox Yeats Property Services
e association in turn Edgecombe Country Club Estate the purposes of the NRTA but held that the Road Rules were Team have combined, 131 years of
promulgates rules which regulate Two (the Estate) and impose argued that the relationship invalid, but the invalidity was legal expertise and experience.
the conduct of persons who own ‘speeding nes’, the ‘Contractor between MECCEMA Two and all suspended for a period of twelve Besides oering standard legal
properties on the estate, occupy Rules’ which restrict the right of owners on the Estate was based on months to aord MECCEMA Two property services such as
properties on the estate or access an owner to choose a contractor contract that was freely and an opportunity to obtain the Conveyancing Transactions and
the estate from time to time. e or service provider of his or her voluntarily entered into and that necessary authorisations and/or Mortgage Bond Registrations, the
rules are enforced by the choice to perform work on the the rules of the Estate operated as consents under the NRTA. team is also highly experienced in
association and are oen a source owner’s property within the Estate a parallel system to the statutory Estate property development, as
of conict between the association and the ‘Domestic Rules’ which regime prescribed by the NRTA. MECCEMA Two have the right well as Town Planning, appeals
and the individuals who fall foul impose restrictions on the Accordingly, MECCEMA Two to appeal the judgement and we and rezoning applications.
of the rules. domestic workers employed by did not “purport to utilise, invoke understand that the Association of
owners and residents on the Estate or usurp the powers under the Residential Communities (ARC), e senior member of the
is was the case in the recent, relating to their working hours NRTA” and as such did “not which represents a number of Property Services Team, Roger
yet unreported, decision of the full and their movements into and consider it necessary to seek any owners' associations around Green, has been elected Lawyer
bench of the KwaZulu-Natal High out of the Estate. authorisation in terms of the the country, is considering of the Year in Real Estate Law
Court at Pietermaritzburg in the NRTA for the enforcement of its intervening in the proceedings. in South Africa for 2018 by the
matter of Nimesh Singh and In the First Judgement, Topping private rules”. global publication Best
Another v Mount Edgecombe AJ upheld the right of the Lawyers.

e Property Team consists
of Partners Roger Green, Robin
Westley, Tina Halstead, Lazelle
Paola, Carol McDonald, abo
Vilakazi and Associate Kim
Edwards. If you require assistance
or advice regarding property
matters, contact us on
031 536 8500 or email
rgreen@coxyeats.co.za
www.coxyeats.co.za

Roger Green Robin Westley Carol McDonald

Tina Halstead Lazelle Paola abo Vilakazi Kim Edwards

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