Page 4 - KZN Business Sense 5.2

WHAT’S THE VERDICT?

Lazelle Paola, Partner, Cox Yeats Attorneys however suspended for a period 4. The fact that the rules provide
of twelve months to afford additional contractual
he question whether the homeowners association requirements for the operation
a residential estate’s an opportunity to obtain the of vehicles on the roads in the
Troads may or may not necessary authorisations and/ estate does not mean that the
be controlled by its governing or consents under the National rules have a public law content
homeowners association has Road Traffic Act, 93 of 1998. 5. There is no need for the
finally been answered. On The homeowners association homeowners association to
28 March 2019, the Supreme was granted leave to appeal the seek authority from the MEC
Court of Appeal handed down matter to the Supreme Court of or the local municipality to
judgement on the appeal Appeal. regulate the conduct on the
in the matter of the Mount estate’s road network
Edgecombe Country Club In what is regarded as a
Estate Management Association landmark ruling the Supreme The appeal succeeded and the
Court of Appeal decided that
II (RF) NPC v Singh & Others Supreme Court of Appeal set
(323/2018) [2019] ZASCA 30 (28 on the evidence presented to it aside the order of the Full Bench PROPERTY TEAM
that the estate’s internal roads
March 2019). and substituted it with an order
are not public roads. The Court
The matter concerned the also went on to hold that the dismissing the appeal to the Full
Acquisition, sale and transfer
lawfulness of certain of the approach of the Full Bench could Bench save for the declaration he team’s experience of commercial, industrial and
and expertise covers not
‘road rules’ of the homeowners not be supported even on the of invalidity of certain domestic
association which empower it to assumption that the roads within worker rules which was not Tonly property transfers, residential properties; leases,
mortgages and bonds but
mortgages and servitudes;
police the road network within the the estate were regarded as public appealed, and which still stands. extends beyond this to town retirement home schemes;
residential estate, including the roads. Supreme Court of Appeal The judgement confirms planning, appeals and rezoning sectional title schemes;
issuing of penalties for speeding. Judge Visvanathan Ponnan in his the right of homeowners applications; Home Owners sectional title arbitration;
judgement held that:
The relevant ‘road rules’ associations to regulate the Association work and much more. share block developments
which two aggrieved residents/ “It cannot be said that conduct of members through and conversions to sectional
members had sought to have ordaining a lower speed a system of rules and reaffirms Over the last 50 years the titles; time-sharing operations;
declared unlawful were the limit within the estate than that the relationship between Cox Yeats Property Team has town planning, appeals and
following: that prescribed by national a homeowners association gathered extensive experience rezoning applications; township
legislation goes beyond and its members is founded in partnering with a great number development and subdivision
7.1.2 The speed limit throughout promoting, advancing and contract. That having been said of successful developers in both of land; the impact of VAT on
the Estate is 40 km/h. Any protecting the interests of the… homeowners associations must large and small, commercial property transactions; home
person found driving members or is unreasonable. still ensure that their particular and residential projects. The owners association/communal
in excess of 40 km/h, This is especially so given rules are lawful and that they Property Team consists of six schemes establishment;
will be subject to a penalty. the presence of children, satisfactorily regulate conduct conveyancers and has over 130 operational issues; and
The presence of children pedestrians and animals including, but not limited to, years combined experience. dispute resolution.
and pedestrians as well as (both domesticated and conduct on their internal road They are able to service clients
many undomesticated undomesticated) upon or in networks. in all aspects relating to their The team comprises Robin
animals such as buck, the immediate vicinity of the property. Westley (Partner and team
monkeys, mongoose, roads themselves. Rule 7.3.2 At the time of writing it still Amongst the accolades’ leader), Tina Halstead (Partner),
leguaans and wild birds goes no further than to record remains to be seen whether the awarded to the members of the Lazelle Paola (Partner), Carol
means that drivers need to that the operating of vehicles in decision will be taken on appeal team is the Lawyer of the Year in McDonald (Partner), Thabo
exercise additional caution contravention of the Act within to the Constitutional Court. n Real Estate in South Africa for Vilakazi (Partner), Nicholas Cura
when using the roads. the estate is prohibited. I fail to 2018 awarded to senior attorney, (Associate) and Roger Green
see why that is prohibited.” Roger Green by the global (Consultant). n
7.3.2 Operating any vehicle in Lazelle Paola is a Partner at Cox Yeats
contravention of the In summary, the Supreme Attorneys practicing in the Property publication Best Lawyers. For more information contact:
National Road Traffic Act Court of Appeal found that: Services Law Team. Lazelle specialises in Cox Yeats is also the recipient T: 031 536 8500
within Estate 2 is prohibited. property, commercial and notarial work, of the Diamond Arrow PMR. E: rwestley@coxyeats.co.za;
1. In regulating the roads, the conveyancing and local government thalstead@coxyeats.co.za;
When the matter had first homeowners association law including town planning and africa Award 2019 for the top- lpaola@coxyeats.co.za;
rated medium size law firm in
come before the KwaZulu- was not usurping the functions litigation. From a commercial law and South Africa. cmcdonald@coxyeats.co.za;
conveyancing perspective, Lazelle acts
Natal High Court, Topping AJ, reserved to the authorities on behalf of several major financial tvilakazi@coxyeats.co.za;
dismissed the application to under the National Road institutions, multinational companies, The Property Team Services ncura@coxyeats.co.za;
set aside the rules. However, on Traffic Act nor contravening Home Owners Associations and Body include: rgreen@coxyeats.co.za
appeal to a Full Bench of the the provisions of that Act Corporates and has been involved in W: www.coxyeats.co.za
KwaZulu-Natal High Court the 2. There is no conflict between a wide range of high profile projects,
judgement of Topping AJ was set the rules and the National as well as the establishment and
aside and the aforementioned Road Traffic Act administration of various residential
estates in KZN
rules of the homeowners
association, were declared 3. The rules are contractually Lazelle can be contacted on:
invalid. The declaration of binding on members and are T: 031 536 8500
invalidity of the road rules was enforceable against them or via email: lpaola@coxyeats.co.za

Robin Westley, Tina Halstead, Lazelle Paola, Carol McDonald, Thabo Vilikazi, Nicholas Cura, Roger Green,
Partner, Team Leader Partner Partner Partner Partner Associate Consultant

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