In response to my estate starting to “enforce speeding,” I studied this issue and wrote the following article on 28 June 2016:
A worrying new trend has started in many parts of South Africa and has proliferated about as silently as the approach of winter: Security Estates have started buying speed measuring devices (speed cameras) of varying kinds and have started enforcing speed limits and “issuing fines” inside estates. This is normally followed with a “rule” that the “offender” must pay a pre-set amount and can only direct a written representation for reconsideration AFTER paying the “fine.”
But how legal is this? Should you pay? What happens if you don’t? What can you do?
When they’re challenged – as has actually happened – they’re quick to remind you that “you agreed to the rules when you bought.” So, should you buy and simply agree to any or all rules or should you challenge those that are or might be against the law before you buy?
Resident Road Traffic Collision Homicide Reconstruction Specialist, Stan Bezuidenhout attempts to find answers. As a Road Safety and Transport Risk Consultant, Former Specialist Reservist in the South African Police and with extensive experience in courts and several legal certifications, he approaches this topic clinically and objectively, after seeing this trend also starting in his estate – an upmarket estate in Broederstroom next to Hartbeespoortdam.
Before writing this article, he sought legal opinion and explored current legal influences. He then had his attorney write a letter to his estate, challenging them to confirm that their actions are not illegal and fully expecting them to react by taking steps to comply with the law and immediately denying that their actions are illegal.
Stan then sought legal opinion on the various laws that would prevail by contacting Justice Project South Africa, his own lawyers, the Private Security Regulatory Authority and the National Prosecuting Authority for input on the issue.
For the record, Stan has not received any fines in his estate, the “enforcement rule” is not focused on the area directly in front of the house he owns and he has not been targeted personally in this regard. His knowledge and experience of and in law and specifically law enforcement led him to believe that the enforcement of speeds and the issuing of fines inside estates might constitute a criminal offence. He opposes all forms of criminality and if his suspicions are correct, he believes that such criminal activity would need to be stopped like any other crime and those perpetrating the crimes brought to book and charged accordingly.
After some research, it was found that there have been reports of some form or another of speed measurement and enforcement in several estates around Hartbeespoort and in the rest of Gauteng and South Africa. The latest to join the fray is his estate. When you visit their website you are presented with a promise of luxury, country living and harmonious co-habitation in a natural setting. You will find no reference to “enforcement” of HOA rules, blocking of gate access cards or unilateral decisions affecting living conditions in the estate.
As residents of the estate discovered in April 2016, the actual experience may be far from tranquil, happy and harmonious. In any setting where an HOA is operating and where directors are elected, the goal of the HOA is to ensure harmonious co-habitation to the benefit of all. The idea is that the HOA serves its members and that they do everything in their power to ensure that the residents, home-owners and visitors enjoy the ownership experience or visit. They are appointed to ensure that the homeowners (members) are not encumbered with the day-to-day running of the general estate affairs.
One of the things the HOA is entrusted with is the task of ensuring that the estate remains safe and secure, properly maintained, pleasing to the eye and a generally happy place to live and be in. In so doing, they might have to approach and interact with residents, visitors and home owners from time to time, when they disregard rules agreed to by members. In this case, they might first communicate with the transgressor and request remedial action. If this fails, they might write an official letter, requesting compliance. When this also fails, they might issue a warning and demand that the transgressor aligns him or herself with the rules. If this also fails, they may impose a special levy on the resident or owner and include it in the monthly levy bill for collection. If the person still fails, they can seek a legal order through the law courts and force the resident or owner to comply by virtue of that order and to pay such levy.
But what happens when the HOA starts to see itself as some kind of “law enforcement agency?” What if the HOA starts treating members as if they are subject to some form of summary sanction or “new rules” designed to increase revenue? What if the HOA starts to send letters of demand immediately or makes decisions regarding “fines” unilaterally, without consultation, meetings, minutes or some kind of vote? What if the HOA starts to adopt a stance that residents, visitors and members are subject to summary enforcement of rules, as if they have governing powers?
Let’s say an estate wants to lower the speed limit and they want to start enforcing those (typically lower) speed limits in the form of “fines” issued to any and all transgressors – including members and even visitors? What would they do? How would they do it? What would you expect?
Well – maybe they would first receive a complaint about speeding in the estate or there would be an incident such as a child run over or an animal struck, leading to the establishment of a desperate need to intervention. What to do?
You would expect that the HOA would first try to address the offender directly. They might follow the procedures outlined above and finally – if this fails – they would explore possible options towards risk mitigation. Perhaps they would consider traffic calming measures first. Let’s say that – in response to those complaints and after all direct approach and warning efforts failed – they decide to install speed humps. You’d expect those speed humps to be installed in the areas where the greatest risk prevails, right? You would expect things like traffic circles, speed humps, warning signs, recommended speed limits and all manner of passive traffic calming measures to be installed and considered.
If – in spite of all this – you find that there is still an issue and you consider the situation to still not to have improved, you would raise it as a discussion point at an AGM. There, where all members are present or represented, you would raise the concern, show the steps that have been taken to address the issue and take suggestions. Perhaps someone suggests larger, a different type or more speed humps. Surely, you cannot for instance drive a Ferrari at 200 Km/h if there are higher speed humps a mere 100m apart – in areas where children are most commonly observed, right?
Let’s say that someone raises the issue of speed enforcement – the issuing of speeding fines. Surely, you would then appoint a committee and perhaps call on specialists or experts – “fundi’s” – within the membership pool and ask them to explore the implications of such a move. You would perhaps consider:
- The cost of the exercise.
- The legality of the effort.
- The likely effect it will have.
- Alternatives short of this option.
- The implications if this also fails.
- A testing period to determine the true extent of the issue.
Having done this, you would inform the board of the above, in a minuted meeting and perhaps call for arguments both for and against this option. After this, you would likely have a vote and send a notice to residents. Perhaps, in this note, you would outline the decision process, the aspects considered, the legality of the option, the implications for residents and call for opinions and feed-back. You would ideally quantify the problem by sharing the results of research. If you are able to show the recorded speed of a Ferrari, at over 200 Km/h perhaps, this would surely go a long way towards driving the decision.
In the very least, you would be able to show that a certain percentage of road users exceed the proposed speed limit by a specific percentage and quantify the risk holistically. You are making a decision that will result in money being taken from members – even for transgressions they did not commit themselves – after all.
If you got majority support and no replies that constitutes legal grounds (of whatever kind) for you not to “take the law into your own hands,” you would erect the appropriate warnings, allow a grace period and send out a notice.
If you have done all this and if you truly determined that you even have the legal right to do so, you would surely be allowed to proceed. If you are then challenged later, you would be able to show, in a court of law, that you took all reasonable steps to ensure that this is an absolute last resort. You could show that the decision was made after an inclusive process, that research supports your concerns and that the majority of members agreed and supported the move.
In addition, you would be able to easily show that the money collected from such “speed fines” would not be used to offset levies and that the increased income will benefit all involved and finally that the enforcement of speeds inside estates is your legal right – to start with. Perhaps all funds raised in this manner would be applied directly towards improved road safety. Additional speed humps, more signs, regular estate road safety warnings, suggestions and articles might be sent out and the roads maintained.
You would show that no other laws exist that could address this problem or that there are specific legal arguments that place you above such laws and empower you to supplement their objectives through your own actions.
You would obviously also show that the steps you are taking does not in some way constitute a self-enrichment scheme and that the “fine money” you are collecting should not legally have gone to the same place all other fine money goes: to the Department of Justice, managed by the Department of Treasury or a Local Authority. You would not be “taking their fine money for yourself.”
Surely after all this you would be above reprieve, you would be viewed as fair, honest and open and you would be acting in the interest of members.
Any allegations that it is nothing more than a “money making scheme” or that it was introduced by an HOA that views itself as some kind of “Government” using Draconian methods, would be easily offset by proof of process.
But what if your HOA just simply makes the decision, decides to enforce speed laws, informs you of the unilateral decision and threatens to cut off access to your house if you refuse to pay the fines?
Well, the author proposes that this is exactly what happened when – in the case of his estate – a communiqué was sent out in April 2016, wherein the following section was included:
In response to a legal letter requesting clarification on the reasons for this move, the legality of a change in speed limit, the legality of speed enforcement by security officers, the issuing of fines and the process followed to introduce the system, the only reply received from the estate was the following:
We are of the opinion that the HOA is acting within the MOI in enforcing the Estate Rules from which speeding is only one aspect. Once you’ve entered the Estate you are on private property where children is also allowed to use the roads. The HOA will therefore strive towards a safe environment for their members which can only be achieved by enforcing the Estate Rules.
We further would like to invite your client to our next Board of Directors Meeting to exchange ideas regarding speeding on the Estate seeing that he is a “fundi“ in the business.
This effectively encapsulates the reasons for this kind of move and you will typically find estates introducing or arguing for the introduction of the system, using the following typical arguments:
- The roads inside estates are “private roads.”
- The speed limit inside the estate is determined by the HOA.
- This speed limit is one of the “estate rules.”
- All estate rules can be enforced (through fines and levies).
- Speed enforcement aims to protect children or animals.
- This is a “last resort” after other calming measures failed.
- If you fail to pay your levies (fines), your access card will be blocked.
- People are “racing in the estate.”
What the letter never addressed and what estates would typically not want members to know, are the following issues that are completely overlooked in a move of this kind:
Let’s start with the argument of safety. Most estates will argue that the speed enforcement and issuing of fines is a last ditch effort to protect the residents and specifically children or animals (in some estates). Basically, they are saying that they “will do anything to prevent injury or worse.”
In the case of his estate, the author was told that “there is a guy with a Ferrari that races his car at 200 Km/h in the estate.” This is then one of the arguments used as some kind of justification of this desperate measure. It’s all about safety, they say.
From the reaction of residents, it became immediately clear that most people have no idea of the legal arguments associated with this move. To them, it’s simple: It’s a “new rule” that they must comply with. The “safety” argument is surely not anything they can argue with. Most are of the opinion that they would prefer not to be fined and some have openly indicated that they would refuse to pay fines, but they are not totally sure of what their legal rights would be. Some approached by the author – a very small percentage – think it is a good idea and that people must stop speeding in estates.
But is it as simple as this? Remember – the HOA will typically argue that it’s in the interest of safety, that the Home Owners are all subject to “Estate Rules” and that they are allowed to “enforce Estate Rules” in the form of “Special Levies.” Note that – in their reply – the estate never used the words “speed fine” or “fine.” Why would they not simply write back and explain the legal grounds for their decision and actions?
They did invite the author to attend a meeting to discuss the issue but what discussion between two parties can make something legal or illegal. If it is legal, there is no need for us to discuss it and if it is not, no discussion we have outside of law will make it legal. Period.
So – think about this for a minute: You live in an estate. You signed that you agree to the rules. You also know that you can be fined for violating the rules. The speed limit is (in this case) 30 Km/h. If you exceed this speed, you will get a “fine.” Is that legal?
If yes – you need to read this and consider your position very carefully. The implications could be very serious for you, personally. If no – what are you going to do about it?
Let’s start right at the beginning and work our way through this issue. Let’s start with the issue of “Private Property.”
Estates will tell you that their property is private property, therefore they are allowed to enforce the speed limits they impose. Before we even address those other issues, we need to be aware of the (selectively extracted) words of Advocate Don Smart who was specifically engaged to give a legal opinion, by Justice Project South Africa. In that opinion, he states:
In terms of the NRTA16 a “public road” means :- “…any road, street or thoroughfare or any other place (whether a thoroughfare or not) 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, and includes —
(a) the verge of any such road, street or thoroughfare;
(b) any bridge, ferry or drift traversed by any such road, street or thoroughfare; and
(c) any other work or object forming part of or connected with or belonging to such road, street or thoroughfare.”
Further in the opinion, he adds:
(If) the roads, streets or thoroughfares or any other place within a gated estate even if on private property are:-
“commonly” used by both “…the public…” as well “…as any section thereof…”; or
roads to which the “…public or any section thereof has a right of access…”; and
the roads and places so used by these vehicles accordingly constitute public roads withinthe meaning of the definition of “public road” under the NRTA.
While the whole opinion covers more than this, it can be comfortably deduced that the qualified legal opinion is that the roads inside estates are in fact public roads.
In layman’s terms, the fact that residents, visitors, delivery services, the police, fire departments, sheriffs, potential home-buyers and all manner of people are legally allowed on the estate and will use the roads, is the reason why it would be deemed a public road, in terms of the law.
If this is true, we need to consider the next part of this issue: The speed limit on that road. In the estate in question, there is a conflict in any event. The speed limit used to be 40 Km/h. Prior to the introduction of the new speed enforcement model, the speed limit was then reduced to 30 Km/h – seemingly at the same time or shortly before the “speed fines” were introduced.
So, read with the determination that the roads inside estates are public roads, who has the right to change speed limits on those public roads?
With reference to that same legal opinion, we found that Adv. Smart’s opinion also states:
Sub section 2 creates a presumption that in the absence of evidence to the contrary, that the road traffic sign concerned was displayed by the proper authority under the power conferred by this Act and in accordance with its provisions.
For signage to be lawful it must be properly authorized and displayed in terms of legislation.
The determination of speed limits are set to apply as general speed limits and under section 59 (1) (a) every public road or section thereof, other than a freeway, situated within an “urban area” has a maximum speed limit of 60 km/h unless an appropriate road traffic sign is displayed on any public road in accordance with section 57 of the NRTA indicating a speed other than the general speed limit which applies in respect of that road.
Regulatory signs not therefore authorised in terms of the NRTA are unlawful and cannot amend a general speed limit nor would they be enforceable. The same will apply to any illegal or unlawful road sign or marking.
So, in the estate, the following Sign can be seen:
Note that you would not have seen any sign of this kind or design anywhere on public roads. In order for a (speed) sign to be legal, the following conditions must be met:
- The sign must be compliant with the dimensions and other specifications contained in the Road Traffic Act (Speed Limit, Size and Height, etc).
- Any change in the speed limit can only be approved by the appropriate authority and it must be in writing.
- Any sign erected that does not comply with these rules (laws, actually) will essentially be illegal.
Now – as far as the estate in question is concerned, the author specifically asked to receive a copy of such written authority.
In his opinion, Smart also states:
The onus to prove that the signage is not lawfully erected rests with the party so alleging, but would be prima facie not so erected and the presumption rebutted if written proof of authority in terms of the NRTA cannot be provided.
No copy of written proof was ever received from the estate. The legal letter sent to them specifically stated the above to be true and they were invited to confirm the contrary in reply. No reply was received. The estate thereby admitted that the Speed Sign (40 Km/h) erected in the estate is unlawful and therefore not enforceable.
Next, we need to determine whether the “rules” of the estate are not superior to the Road Traffic Act, since the residents signed an agreement that binds them to the estate rules. Surely, this is the “clincher” in this whole argument, right? Not so fast there…
Let’s consider a couple of comparative arguments that might help you “frame” the irregularity of this presumption…
Let’s say your child goes to a private school. The school building is private property, remember. If you signed a document – a “legal agreement” – that allows for corporal punishment to be used in the school, would the punishment be allowed under law? Most certainly not and you could face criminal charges for even just supporting it.
What about signing an agreement at work (on private property again, and a “legal employment contract”) that allows for your employer to make you work 15 hours a day, for R5 per hour, without any lunch or toilet breaks, no overtime and no holiday? Surely, since the company premises is private property and because you signed a legal agreement, this would be allowed? Not so much, actually!
Or let’s say that, in your estate (on “private property” remember), the rules are amended by the HOA to include a clause that introduces a curfew. “No persons allowed on common property after 10 PM.” And let’s go further and add that, if you are found to be “in violation of the rule,” you will be taken and detained in a jail cell until after 8AM the next day? Would that be legal? Oh absolutely not!
One last example: Let’s say that there are mostly older people living in your estate. Let’s say they don’t particularly enjoy the noise made by children playing in the streets. In the interest of their sanity, they decide to introduce a new “estate rule:” Any children found playing in the streets or being noisy will be subjected to corporal punishment by the security guards; they will be caned right there and then. Would that be legal? Oh absolutely not!
And every person the author has spoken to has agreed to these examples and how no agreement could surely render them legal. No one thinks these would be legal acts. Everyone knows it would be illegal.
Then why is that people would believe that, in some instances we would be protected by the law and in others we are defenseless? It is very simple. Most people are not aware of the following simple truth:
No two parties may agree to any terms lesser beneficial than the law.
What this means is this: Two people cannot agree to change laws over which they have no legal custody. That’s the purvey of ministers. This is why our constitution is so strong: Not even the police can change laws or manipulate them to their own ends. The Marikana massacre is a resounding reminder of that.
To give you an idea of how far this can go and how ugly this can get: Some people have reported that, in some estates, search and seizure have become the norm. Security guards are randomly entering and searching vehicles and even houses. Even the police need a search warrant for this!
So let’s talk about the issue of the actual device. There are several solutions but devices like the Truvelo Laser Speed Measuring Equipment can reportedly set you back as much as R150,000.00! This is huge money. But then some estates report (with sparkling eyes) how “this machine paid for itself within three months!”
So it is clearly not primarily a safety issue anymore then, is it? If you can potentially earn over R100,000.00 within three months, how mush “safety” did you really buy?
So – on that topic; the issue of safety… As indicated, the estates would argue that this is a vital step towards enhanced safety. They would argue that “kids play in the street” and that they would take this step (spend all that money) to prevent injury or worse. But they are careful to say “children use the streets.” But what do we make of children using the streets to play, to ride bicycles without any regard to road traffic laws, to drive Golf Carts and to even ride fully licensed motorcycles inside estates without helmets? Are we to believe that this “speed fine” rule is imposed on adults so that children can use the streets to break the rules of the road and the law themselves? Whatever happened to parenting and setting a good example?
So, how good is their track record with this “last resort?? If they are willing to spend this much money and even break the law – if all assumptions are correct – to prevent but one injury or death, how much would they do to react to a death that already happened?
Late in 2015, a resident of a local estate drowned in the canals. In local up-market estates in the Hartbeespoort area there were attacks, house robberies and even a murder just recently. How much money have they spent to prevent these kinds of things from happening again?
There are elevated sides to canals within a local estate. There are no warnings, no fences and no safety mechanisms. No improvements have been made to speak of, to prevent another drowning.
The Author’s estate recently built a club house. The club house consists of the main building structure and a communal pool. The pool has been filled with water since the third quarter of 2015. Since before the speed camera was even purchased. It is June 2016 already and still there is no fence to prevent a child from falling into the water and drowning.
This is one of the most common causes of deaths in children inside protected environments. In the history of Hartbeespoort, there has not been a single fatal collision inside estates. But spending over R100,000.00 on a speed camera is vital to prevent it from ever happening, while the alternative threats are abundant – yet not a dime spent on preventing a loss of life there?
So why is speeding such a big issue? Why is the enforcement of illegal speed limits and total disregard for the law – if legal opinions are considered – worthy of such extreme action?
Now, you might argue that it is because the Home Owner’s Association had a special meeting, where this specific issue was discussed, where after legal opinion was sought and where some vote was cast and agreement reached that this is the only way forward.
You could argue that speed limits do not work and that people are still “speeding their Ferrari’s at 200 Km/h inside the estate,” so there is really nothing that can be done. You would be forgiven for believing that – since you never see traffic officers inside estates, enforcing speeds – that the HOA has no option other than to “take the law into their own hands.” But you would be wrong.
If your HOA wants to do something about excessive speeding in the estate, they could consider taking the time to drive to the police station, to lay a Reckless and/or Negligent Driving Charge and to let the courts deal with the offender, as existing laws allow.
Oh yes, they’ll say… There is no point because the police are useless, would not do anything or would not want to do anything. That may be so, but we cannot take the law into our own hands if we don’t like the way it is handled by law enforcement. That’s just the way the law works. If the HOA wants to lay charges and the local police station refuses to accept the complaint, they should lodge a complaint with the Station Commander, the Provincial Commissioner and the Minister of Police, in that order, if they don’t get any joy. That’s the way the world works. Period.
HOA’s are quick to tell members that they can “write to them if they are not happy” but then those very same HOA’s are not willing to “follow the process” as they require members to.
But wait there’s more, as they say in the classics. Let’s also look at exactly who is allowed to enforce the Speed Limits in the estate. Surely, Security Guards can enforce rules – right? Well – no. Not really.
Let’s first look at what Adv Smart had to say about that issue by referring to his opinion. He wrote:
Traffic Officers are appointed in terms of section 3A of the NRTA and any local authority or two or more local authorities may jointly appoint for its area or for their areas jointly, upon the conditions set by the chief executive officer, traffic officers or reserve traffic officers and who shall function within such area and the powers and duties of a traffic officer are further stipulated under section 3I of the NRTA.
A traffic officer has the power and duty to regulate and control traffic on any public road and give such directions as may be necessary for the safe and efficient regulation of the traffic and has in terms of section 334 of the Criminal Procedure Act all the powers conferred upon a peace officer in terms of this Act within the area of jurisdiction of the relevant local authority.
Only persons duly appointed in terms of the NRTA and CPA may carry out the powers, duties and functions of a traffic officer.
Any person who is not an authorised officer or a peace officer may not act in a way that may create an impression that he or she is an authorised officer or a peace officer or pretend by way of word, action, conduct or demeanor that he or she is an authorized officer or peace officer and contravention of this section renders such persons liable to a fine or to imprisonment for a period not exceeding six years.
Further to this, you need to consider whether a security guard recording your speed, walking out into the road and stopping you, asking for your driving license and particulars and who issues you with a “fine” would surely be conducting himself (by way of his word, action conduct or demeanor) in a way that would be representative of what a traffic officer would be authorized to do, in terms of the act.
But how would we know this? How would we know whether a security guard is conducting himself in a way that would be equal to him illegally representing himself as a traffic officer?
There are two ways. The first is about law.
Speeding is a violation of the Road Traffic Act. While this is true, a speeding fine is issued in terms of the Criminal Procedures Act. This is because the Traffic Officer issues you with a notice (that you exceeded the speed limit) and then orders you to appear in court, if you do not wish to pay the fine.
You are then left with the option of either paying the fine, which is an Admission of Guilt under the Criminal Procedures Act or to go to court and dispute the fine. The mere fact that you appear in court is again a process enshrined in the Criminal Procedures Act. By going to court, you have the right to “face your accuser.” You can defend yourself. Then, if the court – the only competent body who can decide if you must pay a penalty for transgressing the Road Traffic Act – decides that you are in fact wrong it can force you to pay a fine or even imprison you, if it sees fit. As far as a Traffic Fine is concerned, you are bound by the law to pay it or to defend yourself against it. Even after this, there are appeal procedures that you can exploit that are further enshrined in the Criminal Procedures act.
While an Admission of Guilt is a pre-defined amount, the process of trial involves consideration beyond the mere guidelines for infringement notices and admissions of guilt. The court can consider mitigating circumstances, aggravating circumstances, your financial position, whether it is a first offence or not and even imprisonment if it considers this the appropriate punishment befitting of the perceived crime you committed.
Next, we need to consider conduct. We need to consider if a Security Guard would even be acting legally, if they issued a fine. Let’s say for the moment that the whole “private property” argument is resolved and let’s assume that, because it is private property, the security guard would not be “impersonating a police officer” by issuing you with a “speed fine.” Let’s say your estate has given him instructions and that he is acting under those instructions and nothing more. What then?
Then another aspect of law comes into effect: The Private Security Regulatory Authority (PSIRA) Act. According to the PSIRA Act, a Security Officer has very narrow duties and is allowed only very specific tasks. The PSIRA Act clearly defines the functions of a Security Service (and by implication a Security Officer), as follows:
‘security service’ means one or more of the following services or activities:
(a) protecting or safeguarding a person or property in any manner;
(b) giving advice on the protection or safeguarding of a person or property, on any other type of security service as defined in this section, or on the use of security equipment;
(c) providing a reactive or response service in connection with the safeguarding of a person or property in any manner;
(d) providing a service aimed at ensuring order and safety on the premises used for sporting, recreational, entertainment or similar purposes;
(e) manufacturing, importing, distributing or advertising of monitoring devices contemplated in section 1 of the Interception and Monitoring Prohibition Act, 1992 (Act 127 of 1992);
(f) performing the functions of a private investigator;
(g) providing security training or instruction to a security service provider or prospective security service provider;
(h) installing, servicing or repairing security equipment;
(i) monitoring signals or transmissions from electronic security equipment;
(j) performing the functions of a locksmith;
(k) making a person or the services of a person available, whether directly or indirectly, for the rendering of any service referred to in paragraphs (a) to (j) and (l), to another person;
(l) managing, controlling or supervising the rendering of any of the services referred to in paragraphs (a) to (j);
(m) creating the impression, in any manner, that one or more of the services in paragraphs (a) to (l) are rendered;
With this in mind, it is clear that there is nothing in the PSIRA Act that covers any duties even vaguely similar to “enforcement” or “traffic offences.” The PSIRA Act essentially confirms – in short – that Security Services and Security Officers are legally mandated to provide personal safety, protection and investigation services.
But to be fair, we need to be sure that PSIRA would agree to this view. To achieve this, the issue was raised directly with PSIRA. In a reply from from Adv. Thwane from PSIRA (their Senior Manager, Legal Services) he was clear in confirming the position of PSIRA as follows:
Security Officers, in terms of the law, are persons who render security services and security service is defined in the Act. In the definition there is no mention (literal) or intimation/reference to the enforcement of traffic laws.
The Code of Conduct for Security Service Providers, 2003 provides that a security service provider rendering a security service – may not incite, encourage or help any person to use force unlawfully or commit any unlawful act; and a security service provider may not hold himself or herself or any other security service provider out to any person as having any authority, power, status, capacity, level of training, accreditation, registration, qualification or experience which he or she or the other security service provider does not have.
Acting outside the ambit of the law is a transgression and PSIRA will ensure, in such instances, that the law takes its course.
In an effort to determine how security officers are seconded to this speed enforcement role, the author also approached the security officers at estates that do “speed enforcement” and learned that their impression of the situation was that:
- They were not instructed to enforce speed laws by their company (seniors).
- They are not sure whether they are acting within the ambits of the law or not.
- They were told to conduct speed testing by the Estate Manager.
- They are concerned about losing their jobs if they do not comply.
- They feel that they are following orders.
We need then also remember that – as much as a contractual relationship exists between the Estate and the Security Service Provider – the PSIRA Act also states specifically that only a Security Officer, Duly Qualified and Registered to a Grade A or B is allowed to perform any Security Management Tasks.
This creates a potential conflict where Estate Managers that are not so registered and qualified are acting in a way that represents management. Surely, in the mind of some, this very act – telling security officers what to do, how to perform and especially in cases where they are given instructions by someone that places them at odds with the very PSIRA Act they are subject to – might represent an offence in terms of the PSIRA Act by direct implication.
Finally, there is the issue of “If you do not pay your fine, your access card will be cancelled.” Interestingly, this is something that has actually been done to a home owner. The home owner (Singh) went to court and the court found that the denial of access to his dwelling is a violation of his right to have access to his property. But more on this below.
In the opinion of the author anything other than the mere cancellation of an access card is nothing more than a nuisance effort. If a resident is required to “sign in,” but still has access to his property, that is one thing. If, however, the implication is that the legal owner of the property and/or anyone who is legally allowed to visit or access his property is summarily denied such access, then legal relief should be sought immediately and a spoliation claim instituted.
But, in short – the law in this regards becomes complex and the remedy too case-specific for consideration in this article. Perhaps a future article will include reference and further explanation of the process involved in a spoliation claim.
So basically, as far as can be established from available legal opinion, the following would or could apply:
- The roads inside estates are considered public roads.
- The speed limit inside estates is 60 Km/h.
- This speed limit can only be changed by written authority.
- Only Law Enforcement Officers are legally allowed to issue fines (enforce laws).
- Security Officers cannot follow orders in violation of the PSIRA Act.
If you speak to Estate Representatives, you will still – in spite of pointing out the above – hear objections and justifications for this new trend. We will discuss some of them out of respect for those arguments and objections:
Our lawyer told us it is legal.
While this may be true, this should be put to the test. While a lawyer might have given a loose verbal opinion about whether estate rules could be enforced through fines, then perhaps that advice would be given. Perhaps the “do what you want for now and apologize later” mentality is applied. “It takes longer to ask for permission than it does for apologizing,” is a common saying.
Before you accept “advice” that was given in a passing conversation, you should at the very least ask the same attorney a series of questions and request advice in writing – ask for a real legal opinion.
Perhaps the questions sent to the lawyer should read something along the following lines:
- Are the roads inside the estate “private roads?”
- Is the speed limit assigned in the estate a legal speed limit?
- Do the estate rules stand above existing laws, such as the Road Traffic Act?
- May we re-assign enforcement of the Road Traffic Act to our advantage?
- Are we allowed to “issue fines” for Road Traffic Act offences?
- Which Road Traffic Laws are we allowed to enforce?
- What are the implications if we act illegally?
- If a member institutes a Spoliation Claim against the HOA – who foots the bill?
- If there are criminal offences in issuing speed fines – who will face charges?
- Who can give security guards instructions outside of the PSIRA Act?
If the lawyer for the estate can confirm that the action would be completely legal, in writing, and that he would offer pro-bono services if anyone is charged or if any claims are lodged, perhaps he is certain of his opinion. Also – if the board members are willing to pay out in the case of successful claims in their personal capacity, that would be completely different.
But ultimately – if the actions of the HOA is irregular, illegal or unjust – the members (home owners) would have to pay for successful claims in the form of a special levy. The greater the amount claimed, the vaguer the legal position, the more draconian the methods and the more unilateral the decision to take action, the greater the risk to homeowners (members).
Everyone is doing it. If we are wrong, they are all wrong.
This is something that was actually said to the Author. Not atypically, South Africans are often very ill informed about how the law actually works in practice. People seem to believe that by “everyone doing it” some kind of legal precedent is set.
Perhaps a quick lesson on law is necessary: In State v Blom, Mrs. Blom went to the Middle East on holiday. There, she visited some of the local souks (market shops) and bought herself a pretty diamond ring, among other things. When she arrived back in South Africa, she was charged with diamond smuggling, essentially. In court, she also used the “but everyone does it” and “I didn’t know I needed a permit” argument. Her arguments were rejected. She was found guilty. This is where – in South African Law – the “ignorance of the law is no excuse” argument actually comes from. This case is regularly quoted in judgments – especially in criminal matters.
Of course, if the “but everyone else is doing it” argument could hold any water, any sane-thinking would-be criminal would need only look at the local crime statistics for those crimes most perpetrated and use that argument in court. Perhaps the knowledge that there were more than 500 car-jackings per year in Hartbeespoort jurisdiction alone, per the SAPS 2014/2015 statistics, would be all the justification anyone would need to follow suit?
Quite frankly, to say that “everyone does it” as some form of argument that it must be legal, is not only incorrect but also irresponsible and immature. Where applicable, the law stands, no matter how many people break it – no matter the “good intentions” claimed, unless some kind of “Robin Hood” argument can be justified.
What must we do?
This is an old argument for so many ailments. The estates claim to be acting in the interest of safety. They are acting out of genuine concern for the members and residents. If this were true, surely in an estate like the one where a drowning has already occurred, there would be equal or greater spending on preventing it from happening again? After as many as three break-ins in a single night, surely they would spend at least double the amount spent on a speed camera to prevent another possible injury or worse to residents?
The author would argue that this was not the case. That spending more than R200,000.00 on security improvements or personal safety (from drowning) would potentially not generate the same income as “speed fines.” Also that you cannot “fine” people for attempting to break in, so “investing” in that sphere of risk cannot produce a return.
If HOA’s can “take the law into their own hands” and “issue fines” as far as road traffic offences (like “speeding”) are concerned, how far can this legally be taken? Could the HOA suspend a vehicle license if it has a bald tyre – because it is private property? Perhaps declare it un-roadworthy? Could the HOA detain people in jail cells for an agreed period, “because it is private property?” Could they introduce physical punishment for offenders of estate rules, “because it is private property?”
We know that HOA’s believe they have the right to “punish” people for offences of the HOA rules, under the argument that it is “private property” and they can seemingly then “do as they please,” but where do you draw the line? If a burglar is caught on the estate – private property – why would you call the police? Why not simply “find him guilty” and “jail him for 5 years?” Surely, when he entered private property the laws of the land were suspended, as in the case of the Road Traffic Act and the Criminal Procedures Act?
What about police gaining access to the estate. Think about the case of the murder inside a local estate recently. Surely, since that estate is also private property, the Security company employed there should conduct the investigation, identify the offender and punish him or her, themselves. The police would then need a warrant to enter the premises – not so?
Absolutely not. This whole “what else can we do” argument is simply immature, self-serving and self-justifying. There is no good argument in law for “what can we do,” that allows anyone other than law enforcement to enforce existing laws. Period.
The Traffics are not doing anything
In one conversation with a Speed Measuring Device Supplier, the Author was told about an estate that approached the local Traffic Authorities and requested enforcement within their estate. The storyteller’s further claim was that the Traffic Department declined to agree to do so. It was further claimed that the traffic department was then offered financial compensation (payment) for performing speed enforcement inside said estate – specifically for over-time pay for traffic officers if/as required. Still, the Traffic Department declined.
When asked why this was the case – what reasons the Traffic Department would have given for declining such a generous offer, no answer or good explanation was forthcoming. The consensus was that “Traffic Departments are useless.”
But the author would argue that there is a very good reason that was overlooked: Speed enforcement can only be done for speeds that are legally applicable. Where a speed sign for (say) 30 Km/h is posted illegally, a Traffic Officer could face criminal charges for issuing a fraudulent fine. If he enforces the PROPER speed limit of 60 Km/h (as is seemingly legally applicable), there would be no offences and the exercise would be a waste of time. If, however, he issued a fine and he issued a fine for exceeding a 30Km/h speed limit while this is not legally applicable and the matter was taken to court, he could face various departmental and criminal charges ranging from Abuse of Power, Fraud and even Illegal Arrest (if a person is detained).
The author predicts that Traffic Departments might be fully aware and might even agree that speed limits of 30Km/h inside estates are not legal and therefore not enforceable and would prefer not to get involved in illegal enforcement actions – but this would need to be verified by the specific Traffic Authority involved in that story – if it is true.
What about Singh vs Mt. Edgcombe?
So there was this case in Durban. In that case, a 113-page judgment came out by His Hon. Judge AJ Topping. Some suppliers of Speed Measuring Devices are very happy to quote this case as “proof that speed enforcement can be done in estates.”
While it is true that Mr. Niemesh Singh instituted three claims (including a Spoliation Action) against Mount Edgcombe Country Club Estate before the High Court in Kwazulu Natal, and while the issue of speeding fines were addressed, the judgment cannot be read out of context.
In that judgment the following arguments are included (as submitted by the legal team for Singh and shortened by the author, for simplification):
- The roads on Estate 2, in spite of being within the fence and appearing to be ‘private’, are in fact public roads and therefore within the jurisdiction of the National Road Traffic Act No. 93 of 1996 (as amended).
- The general speed limit in respect of every public road within an urban area is prescribed by the Minister, which it is accepted is 60 km/h.
- the roads within the estate are public roads they are subject to that general maximum speed limit.
- road traffic signs may only be caused to be displayed on a public road by the Minister or any person authorised by him.
- The duty to regulate the control and monitoring of traffic on public roads is vested in traffic officers.
- Enforcement is regulated by the Criminal Procedure Act, No. 51 of 1977, read with the National Road Traffic Act, and contend that only peace officers… are entitled to police public roads in regard to all questions of speeding.
- Any person who is not an authorised peace officer is not entitled to act in any way that may create an impression that he or she is such a person.
- Fines issued for speeding contraventions under the National Road Traffic Act… can only be issued by peace officers… and not by persons impersonating such offices.
- The Estate has not been authorised by the Minister, or by any delegated authority authorised by him, to reduce the speed limit.
- Any persons appointed to carry out this function within the estate are impersonating or creating the impression that they are traffic officers and/or peace officers.
- Keeping the monies paid by residents in respect of speeding fines and not paying same to the relevant municipality, is committing the offence of compounding, so the Estate is, in essence, unlawfully and intentionally agreeing, for award, not to report or prosecute a crime that is otherwise punishable in law.
- The levying of private speeding fines by the HOA falls within the ambit of section 3 of the Prevention and Combating of Corrupt Activities Act, No. 12 of 2004 because they are offering to accept and is accepting money from residents for its benefit in order to act in a manner which is illegal in terms of the National Road Traffic Act.
- The National Road Traffic Act provides for the suspension of a person’s driving license… in the event of an accident where death or serious injury is caused to any person or where such person is convicted of travelling at a speed in excess of 30 km/h over the prescribed general speed limit in an urban area.
- Since these provisions of the National Road Traffic Act are clearly not being enforced, the Estate is thus haphazardly applying the law in contravention of every person’s right to equality as defined in section 9 of the Constitution of the Republic of South Africa.
- By prescribing that fines must be paid before any application for appeal will be considered, offends against the audi alteram partem principle and accordingly limits the residents’ rights in terms of section 36 of the Constitution by denying them the right to have any disputes that can be resolved by the application of law decided in a fair public hearing before a court or tribunal.
- Singh and others, as law-abiding citizens, are not averse to the policing of the roads, whether they be within the bounds of the estate are otherwise. They are however averse to a private body performing public functions unlawfully and unconstitutionally.
- They contend that they are not prepared to submit to the unlawful authority of the Respondent.
So – in essence, they used exactly the same legal arguments as those outlined in this article.
But their application was not successful. They were unable to get a court order supporting these arguments. And this is where “everyone gets so excited” that they completely forget to read any further.
When you read further, you will learn that this case is very unique, cannot be applied universally to all “speed enforcement efforts inside estates” cases and is most certainly not a finding that such speed enforcement is necessarily legal. This is very easily seen when the judgment is read to conclusion and when it is not cherry-picked for effect.
Most specifically the judgment also states that:
- These arguments were not included in the founding affidavits.
- Only the founding affidavits and their arguments are considered in judgment.
- No decision is actually made regarding the legality or illegality of the issues raised.
So, in essence, there was no judgment on the issue of whether fines were being issued legally in estates in general. This is most certainly not the same as a judgment declaring them legal. In addition to this Singh is still busy with an appeals process on the judgment – so the “jury is still not out” on the results of this specific case.
While the judgment did include some reference to contractual law and the agreements people would have entered into when buying properties in Mount Edgcombe, it is known that people wishing to buy are seldom allowed an opportunity to determine the specific clauses they agree to and are more often than occasionally not even supplied with rules until the purchase has been finalized – often not until arguments already start.
To add to the over-zealous misinterpretation of this judgment, the following facts can also not be excluded from consideration, when reading the judgment:
- Singh (his daughter, actually) was issued with three fines.
- He paid one fine, opposed the second and refused to pay the third.
- By paying the fines and using the appeals processes in place, he essentially agreed to and submitted to the rule – he acknowledged it.
This means that Singh made the mistake of paying one fine and using the appeals process to oppose the second. He acknowledged the rule and the process without any effort at opposition. By comparison, the author aims to address his concerns and would advise others to also do so in advance of any dispute – as he has already done. In the case of his estate, the speed enforcement rule was also never in place when he bought there.
What we learn form all of this is the following:
- By paying any fine, you are accepting the rule and submitting to the process.
- By following the normal channels of appeal, you are acknowledging the process.
- By taking no action and not expressing your dissatisfaction with the status quo, before receiving a fine, you are submitting to the rule and accepting its influence over yourself.
- By not seeking legal opinion for yourself, you are facing the risk of subjecting yourself to potentially supporting illegal actions without realizing it.
- By not informing the estate that their actions are illegal and not holding them to the letter of the law, you are complacent in the criminal offences – where they exist.
- By supporting the illegal acts of a HOA, you are submitting yourself to the risk of legal liability in the event of a successful spoliation or other claim, against your estate.
In essence – you have no alternative but to oppose the move and the enforcement of Traffic Laws by estates on the ground of them potentially being illegal, as shown by many arguments.
Before accepting any speed enforcement rules, submitting to them, paying any fines and/or submitting to any appeals process, you should demand a special AGM, where this very contentious issue can be argued to conclusion and a decision made. At least, in this case, you will be able to show that the estate and the HOA was duly informed of the potential criminal offences they may be committing, have a record of how all residents truly feel and demand full disclosure of the steps taken before the rule and enforcement was introduced.
Why don’t you come and talk to us?
If it is true that it is a criminal offence (and others) for private citizens or even Security Officers to enforce certain elements of the Road Traffic Act, then no discussion with a member – whether such member is a “fundi” or not – will legalize the act.
The author chose to decline, since his letter to his estate clearly outlined his concerns and specifically requested confirmation or denial of the following:
We therefore request the directors of the HOA to provide us with the following admissions sought:
a. Do you agree that the private implementation of speed enforcement of vehicles on public roads by means of fines is unlawful?
i. If not, why not?
b. Do you agree that any no civilian member of the public may issue fines to other members of the public for traffic offences, except for peace officers under legislative mandate?
i. If not, under what authority may any civilian member of the public issue fines for traffic offences?
c. Do you agree that the directors of the HOA may not mero moru implement new rules imposed on the property owners of the estate?
i. If not, under what authority may the directors mero motu implement and impose rules upon the property owners?
d. Do you agree that it is unlawful and unconstitutional to cause or prevent a person access to his/her/it’s property without a formal decree or court order?
i. If not, under what basis is it lawful and not an infringement to the property owner’s fundamental rights?
e. Do you agree that any person whom pretends to be a peace officer (i.e. a Metro Police officer, South African Police Officer, Provincial Traffic Officer or National Traffic Officer) but whom is not a peace officer in accordance with the Act is in fact impersonating a peace officer which is a criminal offence?
i. If not, why not?
f. Do you agree that private security personnel are not peace officers as contemplated by the Act and the Private Security Industry Regulation Act, 56 of 2001?
i. If not, under what legislation, law or authority are private security personnel deemed to be peace officers?
g. Do you agree that the speed enforcement and issuing of fines for traffic offences by personnel of the private security company of the Estate is unlawful?
i. If not, why not?
h. Do you agree that any fine/penalty collected by the HOA does not form part of the revenue of the HOA?
i. If not, do you agree that fines issued by the HOA are a form of revenue?
Should you fail to answer the writer hereof to the admissions sought in paragraph 12 supra by 20 May 2016, it will be deemed that they are all in the affirmative.
Interestingly enough, no reply to any of the above was received by the due date. The author would consider this prima facie proof that the HOA is fully aware that their acts are illegal in all aspects outlined above.
The author also noticed that – in spite of these admissions by default – the Speed Limits are still being enforced, as this image, taken on 18 May, clearly shows:
At the time of publication of this article, it is believed that Speed Traffic Law Enforcement by Security Guards still persists in the estate.
The author is still awaiting further feedback from the National Prosecuting Authority with regards to the specific criminal charges he should or could file and against whom those charges should be laid. Fortunately, if such charges are to be laid, they can be laid after the fact. Criminal offences have no “expiry date.”
So, considering this – do you now think speed enforcement is legal, as performed inside estates? Do you intend to accept the issuing of speed signs without objection?