From The Estate Office

This year December arrived in a blink of an eye and management and staff want to wish all residents/tenants and their families a memorable festive season. Please note the holiday safety precautions provided by Fidelity in the security section, it is handy and may assist to make better decisions when taking precautions against various risks.

Our offices closes on 13 December 2019 and open on 06 January 2020, but a duty manager and skeleton staff will be on call during the period and residents/tenants must call the control room for assistance when needed. Normal functions like security, gardening, maintenance etc. continue during this time.

We urge residents/tenants not going away to not to set off fireworks as it is against Estate rules and have a huge detrimental effect on our wild animals as their senses are more developed hence, they bolt easily and may injure themselves when trying to flee from such noise.

Several residents/tenants still expressed concerns regarding the monitoring of speed limits, the issue of penalties and the responsibility for visitors that commits speed transgressions when entering the Estate. To explain the following must be noted:

  • By nature, every Estate is governed by governance rules that is decided on by the Board of trustees as owner representative body and is confirmed annually as accepted during the annual general meeting.
  • Owners enter into a contract with the Estate HOA when buying into a controlled access gated community that they accept they are governed by the HOA governance rules and commit to abide by these.
  • Such rules are not common to the general public but once an owner/tenant or his/her family member/authorized representative grants permission to a visitor (guest, friend, service provider, delivery person etc.) to enter he/she assume responsibility for the actions of such a person till they exit the Estate. He/she remain responsible to ensure all visitors to their properties are familiar with Estate governance rules prior to allowing entry to such visitor.
  • This contractual relationship was found to be binding by a Supreme Court ruling and was upheld by a Constitutional Court ruling and this enables an Estate to set speed limits and other governance rules to control the safe use of its roads enforce compliance to it.
  • Speed camera monitoring devices is rotated per schedule to cover all areas and in addition the Fidelity reaction officer is deployed at times to focus on areas reported as problematic by different residents. The reaction officer is mandated by the HOA to stop motorists that transgress the speed limit and as standard procedure will offer each motorist to verify the speed reading taken at the time of the offence. Body camera footage is employed during such action as back up should the penalty be in dispute later.

A brief summary of the Supreme Court ruling is:

  • In regulating the roads in an Estate, the homeowner association do not upsurge the functions reserved to traffic authorities under the National Road Traffic Act nor is contravening the provisions of this Act;
  • There is no conflict between such Estate rules and the National Road Traffic Act;
  • Estate rules are contractually binding on members and are enforceable against them, this however do not apply to third parties that an owner/tenant allow to enter the Estate;
  • The fact that the Estate rules provide additional contractual requirements for the operation of vehicles on their roads does not mean that the rules have a public law content;
  • There is no need for the Estate HOA to seek authority from the MEC or the local authorities to regulate the conduct of users on the Estate roads.
  • No vehicle may be operated unlawfully on Estate roads i.e. vehicle not licensed, driver not having a valid driver’s license.

Residents/tenants must note that the Community Participation rules, Section 1 Preliminary points 1.2. to 1.4 cover “ that it is the responsibility of each owner to ensure compliance to Estate rules by building contractors, sub-contractors, deliveries, Lessees, or occupier of their residences including their employees, guests and any family member of the owner, of his/her lessee or of his/her occupier or of his/her contractor.”

Further to this 1.4. “ Damages, penalties (fines), all legal costs (including costs between attorney and client) and expenses and charges incurred by the Association in enforcing compliance with the Rules, shall be deemed a levy and may be added to the owner’s levy statement and shall bear interest as a levy debt, and shall be recovered as a levy.”

From this it is clear such penalties/fines/interest incurred can be charged to each owner’s levy account and a separate statement/invoice is not needed.

As a good code of practice, the speed monitoring devices are calibrated diligently as guided by the equipment suppliers. The calibration certificates are kept on file for record/reference purposes and may be different to standards applied by for example traffic authorities where different laws applies for prosecution by law. As found and ruled by the Supreme Court Estate rules do not have a public law content and hence there is no law regulating the calibration of equipment that is used to monitor/capture the speed of vehicles using Estate roads.

Current statistics gathered reveal that 65 % of speed transgressions committed on our Estate roads are by our residents/tenants and the remaining percentages are by visitors. Most transgressions, 80% are in the 46km/hr. to 55km/hr. range.

We appeal to owners/tenants to cooperate and comply with the Estate governance rules as it is made to promote harmonious community living by considering the needs of all and that once a rule is made by majority decision to honour such decisions.