Regulations promulgated in terms of the Occupational Health & Safety Act (“the Act”) made it compulsory that an Electric Fence System Certificate (“EFSC”) is issued in terms of an electric fence system.
The Regulation became effective on the 1st of October 2012. Regulation 12(4) stipulates that:
“12(4) Subject to the provisions of sub-regulation (5), every user or lessor of an electric fence system shall have an electric fence system certificate in the form of Annexure 1 in respect of such electric fence system: Provided that such certificate shall be transferable.”
Note that reference is made to the user or lessor of an electrical fence system who is liable to comply.
Regulation 12(5) stipulates that:
“12(5) Sub-regulation (4) shall not apply to an electric fence system that existed prior to the coming into force of these Regulations: Provided that if-
(a) any addition or alteration is effected to such electric fence system; or
(b) there is a change of ownership of the premises on which such electric fence system exists after 1 October 2012,
the user or lessor shall obtain an electric fence system certificate for the electric fence system, whereafter the provisions of sub-regulation (4) shall be applicable.”
This Regulation implies that an electric fence system that existed on the 1st of October 2012 is excluded from the operation of Regulation 12(4) and only upon a change of ownership as from the 1st of October 2012, the user or lessor will have to obtain an electrical fence system certificate.
At a first glance it would appear that there is no obligation on a seller of a property to comply with the provisions of Regulation 12(4).
Section 22 of the Act however provides that:
“22. Sale of certain articles prohibited
Subject to the provisions of section 10 (4), if any requirement (including any health and safety standard) in respect of any article, substance, plant, machinery or health and safety equipment or for the use or application thereof has been prescribed, no person shall sell or market in any manner whatsoever such article, substance, plant, machinery or health and safety equipment unless it complies with that requirement.”
Therefore, to the extent that Regulation 12(4) merely refers to a “user or lessor” of an electric fence system, Section 22 clarifies the position of a seller and therefore a seller should comply with the regulations. If an electric fence existed as at the 1st of October 2012 (the effective date of the regulation), then there is no requirement that the user or lessor should be in possession of an EFSC. If, however, there is a change in ownership of the premises after the 1st of October 2012, the user or lessor shall obtain an EFSC.
The liability of a seller in terms of Section 22 of the Act to furnish an EFSC upon the sale of the property can be shifted from the seller to the purchaser by agreement. It would then be the responsibility of the purchaser to obtain an EFSC. It is necessary to stipulate in a Purchase and Sale Agreement which of the parties will be liable for the costs associated with obtaining the EFSC.
An EFSC is valid for a period of 2 (two) years from date of issue provided that the system is not upgraded or changed in which event new certification is required.
What is the position of a sectional title unit owner where he sells his unit in a Sectional Title Scheme and where an electric fence system has been installed on the common property?
Although the Act and Regulations do not distinguish between free-standing properties, sectional title units or full title erven in security estates, this question should be assessed on the facts applicable.
A sectional title unit owner is owner of his section (living space) and owner of an undivided share in the common property. He cannot sell his section apart from his undivided share in the common property. All the members of a Body Corporate are therefore joint owners of the common property and as such are users or lessors of the electric fence system.
The Body Corporate is responsible for the management, control and administration of common property and its functions are exercised through the trustees. The Body Corporate is therefore, in my view, on behalf of its members, liable to comply with the regulations and to obtain an EFSC.
It is therefore my view that where an electric fence system is situated on common property, that there would be an obligation on a unit owner as seller to comply with the provisions of the Act and Regulations, and to furnish an EFSC to the purchaser, unless it was agreed that the purchaser will be liable to comply.
A Body Corporate can be held liable in delict for damages caused by death or injury that may be caused as a result of a defective or non-compliant electric fence system and it is therefore advisable that the trustees comply with the provisions of the Act and Regulations, and obtain an EFSC. Whenever there is change of ownership of a unit in a scheme, a copy of the EFSC can be provided to the member/seller.
An EFSC is issued by a registered electric fence installer, registered with the Department of Labour and not by an electrician. The certificate will not be issued if the system does not comply with the Electrical Machinery Regulations. A sectional title unit owner cannot be expected to effect repairs to a defective electric fence system in order to comply with the Regulations and in order to receive certification of the system. In fact, a unit owner may not tamper with common property, in this case the electric fence system.
It is therefore also practical that the trustees, on behalf of the Body Corporate, obtain the required certification.
What if you reside in a security estate?
With security estates or group housing complexes where you have an estate comprising of full title erven or sectional title schemes, or a combination of both, with a perimeter wall surrounding the entire estate and with an electric fence system installed on the perimeter wall, the matter becomes more complicated and must be assessed from the facts applicable and the location of the relevant erf or complex.
In such an estate, the communal areas such as roads, gatehouse, perimeter wall and other common facilities and recreational areas which are generally referred to as “common property” are usually owned by the Homeowner Association (“HOA”) and under the control of the HOA. When a sectional title owner of a unit within the estate sells his unit or where an owner of a full title erf sells his erf, there would be no obligation to comply with the regulations as an electric fence system is not installed on the free standing erf or on the common property of the scheme (assuming that there is no additional or separate electric fence system on the common property of the scheme or on the freestanding erf).
The difficulty arises when an erf adjacent to the perimeter wall is sold. What is the obligation of an owner of such erf? Debate on this issue can become very technical and an answer may also be dependent on whether the perimeter wall falls within the extent of the relevant erf, on the boundary thereof or outside the extent of the erf. Assuming the perimeter wall falls within the erf or on the boundary, one can reason that the user or lessor of the system, although only a part thereof, is liable to comply with the Regulations.
To avoid debate and disputes, it is my advice to Directors of HOA’s to obtain certification for the electric fence system as the HOA is owner of the system and can be held liable if the electric fence system is not compliant and if any damages arise from injury and/or death.
Directors of HOA’s must act responsibly and it is therefore advisable that they receive certification for their electric fence systems.
Written by EY Stuart
EY Stuart Attorneys, Pretoria