Golf Carts and Gated Estates: A Legal Reflection
One of the reoccurring issues facing home owner associations (HOA’s) across South Africa is the regulation of golf cart usage within golf, lifestyle and similar estates. This quandary is largely borne by reports of the dangerous and/or negligent operation of golf carts, increasing the probability of damage or injury to property and persons alike. The question accordingly arises as to how golf cart use should be regulated within gated communities. This can be assessed with due consideration to the relevant legal framework and contrasting schools of thought.
In terms of the National Road Traffic Act 93 of 1996 (“the NRTA”), any person who operates a motor vehicle is required to be in possession of a corresponding license.[1] The implicit question, of course, is whether this requirement is equally applicable to golf carts in gated estates. This principally concerns an analysis of the definition of “motor vehicle” and “public road”, as they are defined by the NRTA[2] and the manner in which they have been interpreted by the courts.
In 2011, the High Court answered in the first aspect of this analysis affirmatively, holding that golf carts do in fact constitute motor vehicles for the purposes of the NRTA.[3] The position with regard to the definition of “public road” is more contentious. In 2017, the High Court considered the enforceability of certain estate rules and seemingly accepted that roads within gated communities are “public road”.[4] However, on appeal in 2019, the Supreme Court of Appeal found that such roads do not necessarily acquire the character of public roads and based this finding on the assertion that “there is no right on the part of general public or any section thereof to traverse the roads”.[5]
On the strength of this decision, it can be deduced that HOA’s are not firmly bound by the provisions of NRTA as they may be applicable to golf cart usage within many estates.In purported affirmation of the SCA’s finding, there is a general reluctance on the part of home owners’ to import the rules of the NRTA to their respective estates. As such, HOA regulations are often at odds with the NRTA. This is especially true with regard to licensing requirements, with many estates permitting unlicensed persons to operate golf carts. The reasons informing such regulations are rooted in convenience and there is little doubt that home owners’ enjoy certain benefits of affording their children and children’s caretakers (both of whom are often unlicensed) an alternative mode of transport to commute to and from various amenities within their respective estates.
Notwithstanding the dubious legal position as regards the applicability of the NRTA to gated communities, there is a compelling argument which supports a minimum licensing requirement consistent with this legislation. The popular reasoning tendered by commentators is related to safety and liability considerations. Put differently, a person who holds a licence to operate a motor vehicle will generally display the minimum skill and aptitude necessary to operate a golf cart, decreasing the likelihood of golf cart-related accidents. Moreover, HOA’s are exposed by the consequences of such accidents and risk facing substantial personal injury and similar damages claims against them. This too is mitigated by a licensing prerequisite.The strict regulation of golf cart usage within golf, lifestyle and similar estates through, inter alia, a compulsory licensing requirement, should not be construed as a “magic bullet” – incidents of reckless and/or negligent driving will inevitably continue to occur. Nevertheless, it is becoming common practice for the HOA’s of gated communities to introduce regulatory measures consistent with the provisions of the NRTA. This is unsurprising given the safety and liability considerations associated with these decisions..
[1] See section 12 of the National Road Traffic Act 93 of 1996 (“the NRTA”).[2] Section 1(XIii) of the NRTA defines “motor vehicle” as any “self-propelled vehicle and includes- a trailer and a vehicle having pedals and an engine…”. Section 1(Iiv) of the NRTA defines “Public Roads” as “any road, street or thoroughfare or any 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…”.[3] See Berry and Another v SPE Security Patrol Experts and Another (2011 (4) SA 520 (GNP)) [2010] ZAGPPHC 260; 3211/10 (6 August 2010).[4] Singh and another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and others [2017] JOL 39258 (KZP).[5] See Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh & others (323/2018) [2019] ZASCA 30 (28 March 2019).
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.