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What are the Rules about children playing in the streets within Gated Communities?

Jonckie

Question:

Is there any information or section of the law as to the above concern of children playing in the road of gated estate. A number of the Children are from the committee, so this is encouraged.

Answer:

Advocate Jonck is correct when he says that there is no specific legislation applicable to children playing on the roads in gated communities. In fact, there is no specific legislation which has been enacted to deal with the affairs of freehold developments and it is my view that this lacuna has led to an enormous amount of abuse within the reportedly more than 3,000 estates around South Africa, a large proportion of which appear to believe that they are mini-republics within the Republic of South Africa.

 

The provisions of the National Road Traffic Act (NRTA), No 93 of 1996 do however apply to all public roads in the Republic of South Africa, including but not limited to public roads which fall within the confines of gated communities (estates) developed as freehold developments.

 

Regulation 316 of the National Road Traffic Regulations applies to pedestrians and prescribes as follows:

 

  1. Whenever a sidewalk or footpath abuts on the roadway of a public road, a pedestrian shall not walk on such roadway except for the purpose of crossing from one side of such roadway to the other or for some other sufficient reason.
  2. A pedestrian on a public road which has no sidewalk or footpath abutting on the roadway, shall walk as near as is practicable to the edge of the roadway on his or her righthand side so as to face oncoming traffic on such roadway, except where the presence of pedestrians on the roadway is prohibited by a prescribed road traffic sign.
  3. No pedestrian shall cross a public road without satisfying himself or herself that the roadway is sufficiently free from oncoming traffic to permit him or her to cross the road in safety.
  4. A pedestrian, when crossing a public road by means of a pedestrian crossing or in any other manner, shall not linger on such road but shall proceed with due despatch.
  5. No pedestrian on a public road shall conduct himself or herself in such a manner as to or as is likely to constitute a source of danger to himself or herself or to other traffic which is or may be on such road.
  6. A pedestrian may cross a public road only at a pedestrian crossing or an intersection or at a distance further than 50 metres from such pedestrian crossing or intersection.

 

As you can see, subregulation (5) clearly prohibits playing on a road.

 

There has unfortunately been a propensity by many Homeowners Associations in freehold developments to assert that the roads within such developments are “private roads”. As things stand, this assertion is incorrect since the roads within these estates are used by members of the public and not only by the members of those Homeowners Associations and therefore, fall directly within the definition of a public road.

 

It is my view that the practice of allowing children to play in or on roads/streets – whether in a gated community or not – is not only unlawful in terms of the NRTA, but is highly irresponsible and is furthermore tantamount to child abuse. The problem however comes in when trying to get someone to do something about it and I dare say that it is going to take a tragedy for people to realise that roads are not and never have been safe for children to play on. That’s what parks are for – if your garden isn’t big enough!

 

The really bizarre thing is that a large number of these Homeowners Associations go on about how unlawfully setting their own speed limits and equally unlawfully imposing fines for imposing them is justifiable because it is in the interests of “road safety”. One such Homeowners Association in estate I interacted with recently even has the audacity to speak about road safety when there is not a single sidewalk for pedestrians to walk on and only one pedestrian crossing in the entire estate of more than 700 (large) stands.

 

Clearly, common sense is not that common.

 

Best Regards,

 

Howard Dembovsky

Chairman – Justice Project South Africa (NPC)

Association Not For Gain  |  Incorporated as a non-profit company under the Companies Act, 2008  | Registration Number 2010/019972/08

 

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