Court Prohibits Gated Communities To Contractually Regulated Traffic
In a very insightful Daily Maverick article by Prof Pierre de Vos - the Deputy Dean of the University of Cape Town Law Faculty who teaches Constitutional law, he points out that attempts to privatise privilege by invoking the law of contract or property law speaks of a pre-constitutional mind-set associated with a particularly toxic strand of liberalism. He also points out that in terms of this view, the wealthy and socially privileged can largely opt out of ordinary legal obligations and the non-discrimination provisions of the Constitution.
Last week a full bench of the KwaZulu-Natal Division of the High Court (Pietermaritzburg) declared invalid several managing association rules of a golfing estate which regulated traffic and discriminated against “domestic employees”. The judgment provides a timely reminder that no person or body (including a body corporate) can contract themselves out of constitutional or other legal obligations.
The judges also made it clear that the court’s ruling is not unique to the facts of this particular case, by concluding “If in fact there are other associations and/or estates in the country who, like the first respondent herein, either through ignorance or plain arrogance on their part, have seen it fit not to comply with statutory provisions, it's time that they did.”
Attempts to privatise privilege by invoking the law of contract or property law speaks of a pre-constitutional mindset associated with a particularly toxic strand of liberalism. In terms of this view, the wealthy and socially privileged can largely opt out of ordinary legal obligations and the non-discrimination provisions of the Constitution. 11
You can do this (according to a widely held, but false, belief) by buying and/or managing private property according to a set of rules “agreed” to by the property owners and by those who “voluntary” frequent these properties. All you have to do (according to this surprisingly persistent myth) is to invoke what has become an empty platitude (“right of admission is reserved”) and – magically! – you have become exempt from any constitutional or other legal obligations.
Put differently (and perhaps somewhat less charitably), there is a sizeable number of people in South Africa who believe that their wealth and social status exempt them not only from the need to obey certain laws, but also from any ethical obligation not to be complete assholes.
Which brings me to the High Court judgment in the case of Singh and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and Others.
I like reading court judgments dealing with quarrels between neighbours or family members. The formal legal prose often hints at the complicated interpersonal relationships of the characters involved; of their political attitudes, fears and prejudices; of the (often unnamed) protagonists who are fighting this battle, perhaps not knowing that they are really fighting about something else entirely.
And often they are fighting about something else: about who “belongs” in a community and on what basis those who look different, speak different, or act different, should be welcomed into the community; about whose values, world view, and sense of right and wrong ought to prevail; about racial identity and about how an upper middle-class person should look and behave and think.
Reading about the fight between Niemesh Singh and Munshurai Ramandh, on the one hand, and the Mount Edgecombe Country Club Estate Management Association, on the other, I cannot help but wonder how many of the owners of houses in the estate are called Spencer, or Grant-Smith, or perhaps (my imagination conjuring up the most caricaturish colonial-sounding English surname) Rees-Mogg. How many of the owners are called Dlamini, or Pillay, or Mkhize?
On Google street view, the large houses in the estate – at least not built in the faux Tuscan style – lurk angry and afraid behind a tall, securitised parody of a white picket fence that spans the perimeter of the entire estate. If the houses were not so large, it would have been possible to imagine that the fence was intended to keep prisoners inside – instead of intruders out.
Why was the management association setting up road traps on the public roads within the gated estate? Why were they so incensed when Mr Singh’s daughter was caught in one of the speed traps when she exceeded the 40 kilometres per hour speed limit imposed by the rules? And when Mr Singh refused to pay the fine, did they really think it was reasonable to block the family’s access to the estate, thus preventing them from travelling to their own home?
And another question: Is it my own prejudice that makes me wonder whether the chairperson of the management association who oversaw this madness was named Spencer, or Grant-Smith, or Rees-Mogg and that he (for in my head the chairperson could only possibly be a man) was suspicious of his new neighbours and thought he had to enforce the absurd rules in order to “show them who we are”, and to “ensure that standards will be maintained”, and to “hold the line” against, you know, “them”?
Who are the people who happily devised or actively or passively endorsed the following set of rules supposedly applicable on the estate? And were those who approved of these rules (whoever they might be) aware that the rules said more about their own racism, their own ignorance, their own fear, and their own inhumanity, than it could ever say about the (surely exclusively) black domestic employees targeted by them?
“9.3.2 …Domestic Employees must make use of designated bus stop points throughout the Estate. When the bus service is unavailable, domestic employees may walk on the estate between the residence where working that day and their gate of exit.
9.4.1 All domestic employees must be registered on an annual basis from the date of their first registration and are to obtain an access card for entry to Estate 2. Access cards will be validated only for recognised normal business hours unless authorised differently for MECCEMA TWO.
9.4.3 Domestic Employees may have access to Estate 2 from Mondays to Sundays but only during the hours 06h00 and 18h00…
9.6 ….temporary domestic workers must be picked up and dropped off at a gatehouse by the employer.”
You see, it is not possible for me to have devised another, altogether more happy, story by scavenging on the carcass of the formal legal judgment handed down by the full bench of the KwaZulu-Natal High Court. (Is this, perhaps, too, a sign of the times? If this was 1996 and I had still been in the grip of nice-warm-feelings rainbowism, would I have been able to conjure up a Simunye-like sitcom, filled with innocent cultural misunderstandings and good-natured jousting between an older white man and an aspirational black family, leading to acceptance and a celebration of diversity at a communal braai?)
Let me not try to answer these questions. (It is not as if you, dear reader, have not already jumped to your own conclusions and answered the questions on my behalf.) Instead, let me turn to the relative certainty of the law, and this time with some relief and a tentative sense of gratitude. Sometimes the law does its job, and when it does, it delivers an outcome that gestures towards justice.
And in this case the law is relatively straightforward. As Seegobin J (Chetty J and Bezuidenhout J concurring) notes in his judgment, in terms of the National Road Traffic Act the roads in the Mount Edgecombe Country Club Estate are “public roads” subject to the same rules as any other public road.
The management association wrongly believed that it was free to control, regulate and police all roads within the estate because it had entered into a contract with the owners living in the estate to do so. But private parties may not refuse to obey national legislation because they had contracted with other private parties who thus supposedly had consented to this flouting of the law.
It was even more outrageous that a private company was conducting speed traps and imposing fines on a public road without having any legal authority to do so. The court had no problem in finding that the company had no legal power to do this and to nullify the rules supposedly allowing it. (As an aside, this is similar to those businesses purporting to “reserve” street parking on the public road outside their premises by blocking parking bays with orange cones: when I see this, I stop, remove the cones, and park on the spot – as I am legally entitled to do. Stuff them and their entitlement.)
But the most egregious aspect of the case relates to the attempt by the management association to impose apartheid -era rules restricting the movement of “domestic employees”. These rules – quoted above – demonstrate, in ways surely not intended by its drafters, the perversity of part of South African society.
On the one hand, these rules remind us that the wealthy and socially privileged who live on this estate are reliant on the labour of (largely or exclusively) black “domestic employees”. We are reminded that, like in many other parts of South Africa, there is an intimate entanglement between the (mostly white?) privileged owners living in the estate and the black women and men working for them.
Yet, at the same time, the rules reflect the fear and suspicion that some (would it be unkind to say, most?) of the owners of the large homes on the estate harbour towards those who enter their most intimate spaces, where they sleep, eat and have sex.
Thus, the rules must police these potentially “dangerous” men and women and must protect the bigoted home owners from the imagined dangers of the very people who wash their underwear, look after their children, clean their toilets, and cook their food. When one reads these rules, it is difficult not to condense them all into one simple word: racism.
It is worth quoting Seegobin J at length on this point. He gets to the heart of the problem by describing the problem with these rules as follows:
“Domestic employees are simply not free to traverse the public roads in the estate save in the limited manner provided by the Rules. From a constitutional point of view their rights in this regard are severely restricted. The first respondent appears to have categorised them into a class of people who pose a security risk to people living on the estate. Their position within the estate is reminiscent of the position that prevailed in the apartheid era: while they are good enough to perform domestic duties for their employers on the estate, which include the task of pushing perambulators on the roads, they are precluded from exercising any rights derived from public law and the Constitution. The restrictive nature of these rules also affect other basic rights of domestic employees such as their rights to human dignity, equality, freedom of association, freedom of movement, freedom of occupation and fair labour practices.”
The judgment therefore concludes that the rules are unlawful and invalid.
It is at this point that I cannot stop myself from wondering (and readers will decide how unkind this is) how members of the Mount Edgecombe Country Club Estate Management Association Two must have reacted to the judgment.
Are they outraged? Are they consulting lawyers and collecting money for an appeal to the Constitutional Court? Or do they feel appropriately chastised, and wondering why they ever endorsed these racist rules – much like a reborn Zanu-PF cabinet minister wondering why he only decided in the past week to stop singing the praises of Robert Mugabe?