With many South Africans opting to stay in gated communities, we have seen a steep increase in estates being developed. Living in these estates does however come with a lot of rules and restrictions that home owners have to adhere to.
In the recent case of Singh and another v Mount Edgecombe Country Club Estate Management Association 2 (RF) NPC and others  JOL 35169 (KZD) (Singh case) the legality and enforceability of certain of these estate rules had to be determined. The court had to look at the rules which grant the estate management the right to suspend the access cards of a property owner if the member is in breach of the rules; and regarding the establishment and enforce speed limits on the roads within the estate.
WHAT THE COURT HAD TO DETERMINE:
The court cited another case to determine whether or not these rules were in actual fact enforceable. The judgment which the court cited held that “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”. The court acknowledged that certain rules were restrictive but did not find any of the rules to be contrary to public policy and therefore not unenforceable.
With regard to the rules which granted the respondent the right to suspend the access cards and access to the estate in the event of a member failing to comply with the rules of the estate, the court held that the rules and remedy of suspension in itself was not unlawful.
In the Singh case the respondent failed to prove that the daughter of the applicant had in fact been speeding and was therefore in contravention of the rules by refusing to pay the fine. The act of unilaterally suspending access to the cards without approaching a court amounts to self-help (spoliation) and the applicant was able to rely on a mandament van spolie and their access cards were reinstated.
The question does however arise: Can estates enforce their own speed limits? The court held that there cannot be dual systems of law and estate associations cannot determine their own rules to the roads. They had to seek the necessary permissions from the MEC or the Municipality where such rules are required, which the association in the present case failed to do. The court thus ruled in favour the applicants.
It is crucial that before purchasing a property within an estate, purchasers should thoroughly read through estate rules or conduct rules and should seek legal advice should there be any concern or if interpretation of the rules are required.