The importance of an Electrical Compliance and Electric Fence Systems certificates
The importance of the provision of an electrical compliance certificate in terms of the Occupational Health and Safety Act 85 of 1993 (the Act) is sometimes unfamiliar, however all practitioners dealing with transfer of ownership of immovable property should be aware of the requirements in respect thereof as well as the latest developments in respect of electrical fencing.
A user of an electric fence system in existence after to 1 October 2012 is now obliged to render a certificate of compliance in respect of such electric fence system, or if an alteration or addition has been made to a system installed prior to October 2012.
The electric fence system certificate is separate from an electrical compliance certificate and is therefore an additional requirement if the property has an electric fence system.
When entering into an agreement of sale in respect of a fixed property with an electrical fence system, after 1 October 2012 it should be a condition of such agreement and should be delivered prior to the registration of the transfer of such property. The certificate is however transferable. Once it has been issued, there is no need to obtain a new one on a change of ownership, unless amendments or additions have been made to the system.
In respect of the transfer of ownership of a sectional title unit, the Sectional Titles Act imposes a general duty on the body corporate to control, manage and administer the common property, of which such electrical system forms a part. As the body corporate falls within the ambit of a "user" in terms of the Act, and will subsequently be liable for the issuing of such certificate. When an owner therefore sells his sectional title unit, a certificate from the body corporate confirming that a compliance certificate exists in respect of the electric fence system, will suffice.
Regulation 12 does not prohibit the transfer of ownership in the absence of a certificate, however, it places an obligation on a user to obtain a certificate. The obligation therefore falls on the purchaser as he will become the user on registration of the transfer, to obtain the certificate.
Unless it is stipulated by the agreement of sale, there is no obligation on the conveyancer to obtain the certificate on behalf of the transferee, unless the purchaser's offer to purchase stipulates that he requires the certificate to be issued to him together with the electrical compliance certificate. Conveyancers may proceed with transfer of the property unless prohibited specifically in terms of the agreement of sale. A clause in a sale agreement that places an obligation on the seller to provide the purchaser with an electric fence system certificate serves a twofold purpose: It removes the ambiguity created by the ambiguous wording of the Act and it protects the purchaser.
Failure by the user to obtain an electric fence compliance certificate where an addition or alteration has been effected or where there has been a change of ownership of the premises on which the system exists (if the change took place after 1 October 2012) could result in a fine or a prison sentence. In terms of the reg 24 of the Electrical Machinery Regulations, any person who contravenes or fails to comply with any of the provisions of reg 12 shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a maximum of 12 months and, in case of a continuous offence, to an additional fine of R 200 for each day on which the offence continues or additional imprisonment of one day for each day on which the offence continues: Provided that the period of such additional imprisonment shall not exceed 90 days.
In the case of a lease agreement that is silent on the issue, who should issue the certificate?
It is most likely that a lessor of a multi-tenanted building will control the system. The body corporate, if applicable, will control the system where the lease pertains to a sectional unit in a sectional title scheme.
The system is being used to the benefit of the landlord and tenant alike, however it is unfair to require a tenant to obtain such a certificate if there is a change ownership. The landlord should therefore obtain the certificate if he has sold the property. In cases where a property surrounded by an electric fence system, is let, a clause stipulating the responsibility for the issuing of the certificate should be included in lease agreements.
• A body corporate and not the sectional title unit owner will be responsible for the obtaining of a certificate.
• if a deed of sale or offer to purchase does not provide specifically for the provision of the certificate, the purchaser of a property must obtain a certificate.
• A landlord should obtain a certificate for leased property.