House building Archives » Building Regulations South Africa
Feb 112014
 

Electric Fences Regulations & Rules Explained

A Definition of  Electric Fences

Electric fence top wall s Electric Fences Explained

Electric barrier fence erected on top of a street facing wall

For the purposes of managing and assessing proposals in terms of the City’s policy, an electric fence means “an electrified barrier erected on top of a boundary wall or attached to a boundary wall or fence”.

Specifications for Electric Fences

  • Electric fences shall conform to the following:
  • Electric fences may not be any higher than 450 mm.
  • They must be at least 1,8 m above the level of natural ground at any point.
  • They may only be erected on top of walls and fences, or attached to them.
  • They may not encroach over site boundaries.
  • Regulation 11 of the Electrical Machinery Regulations promulgated in terms of the Occupational Health and Safety Act, No 85 of 2003 must be fully complied with.

Regulation 11 of the above Act gives information in terms of how electric fences operate in terms of the shock they impart. For instance, the peak value of voltage is 10 kV; the maximum duration of the electrical impulse it puts out is 50 ms; the minimum interval allowed between impulses is 0.75s; the maximum quantity of electricity per impulse allowed is 2.5 mC; and the maximum energy discharge per impulse measured at a resistance of 500 ohms is 8 J. In a nutshell, electric fences are intended to be a deterrent – not a device that will kill an intruder!

Other points in Regulation 11 include (but are not limited to):

  • “fence energizers” shouldn’t be installed in locations where they could become a fire hazard
  • they shouldn’t be installed any closer than 2 m from the earth of any other electrical system
  • barbed-wire should never be electrified – the idea is that a person who touches electric wiring will let go immediately

In addition, the City’s policy document states that freestanding electric fences may not be erected along any boundary in a position that would allow people to “inadvertently come into contact therewith”.

Essentially the reasoning is that while electric fencing is erected to keep intruders out, it must not be erected in such a way that a passer-by could touch it accidentally.

Security Devices Explained

Definition of Security Devices

Spikes wall electric1 s Electric Fences Explained

Spikes and an electric fence mounted on top of a street facing wall.

For the purposes of managing and assessing proposals in terms of the policy, security devices include a variety of devices – security spikes, razor wire and barbed wire affixed to, or on the top of walls or fences.

Requirements Regarding Security Devices

Any proposal in this regard shall comply with the following:

  • Security spikes are permitted on top of boundary walls as long as they are affixed at least 1,8m above the footway (usually a pavement or kerb).
  • Security spikes may not encroach over the site boundary.
  • Razor and barbed wire is not permitted in any form in residential-zoned and commercial-zoned areas. They may be used in areas that are zoned industrial.
  • Glass shards are not permitted in any form in residential areas.

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Acceptable Materials for the Construction of Boundary Walls and Fences

1. Residential and Commercial-zoned Areas

Street Frontage

These materials are allowed:

  • Facebricks and facebrick finishing
  • Plastered and painted brickwork
  • Decorative brick and blocks
  • Natural stone
  • Galvanized or plastic-coated wire mesh
  • Pre-cast concrete
  • Cast-iron work
  • Steel palisade fencing
  • Timber, as long as the components consist of:

(i)            processed and treated and square-sawn timber

(ii)          round poles of even thickness in the case of ranch-type fencing

(iii)         in the case of interwoven fencing, shall be suitably capped and framed

  • Freestanding electric fences that are set back by at least 1 metre from the boundary.
  • Electric fences and spikes are permitted on top of walls and fences.

These materials are not permitted:

  • Galvanized iron sheets
  • Asbestos-cement or fibre-reinforced sheets
  • Barbed wire, unless the Council is satisfied that the property is being used for bona fide farming purposes (which clearly wouldn’t be the case in a residential area).
  • Razor wire
  • Off-cut, untreated split-pole or sapwood timber (laths or latte) of any kind.
  • Razor wire and barbed wire, and embedded glass shards are not permitted on top of walls and fences

2. Lateral Boundaries (ie neighbour’s boundaries)

These are the boundaries between you and neighbouring properties.

These materials are permitted:

  • Facebricks and facebrick finishing
  • Plastered and painted brickwork
  • Decorative brick blocks
  • Natural stone
  • Galvanized or plastic-coated wire mesh
  • Pre-cast concrete
  • Cast-iron work
  • Steel palisade fencing
  • Timber, provided the components consist of:

(i)            processed and treated and square-sawn timber

(ii)          round poles of even thickness in the case of ranch-type fencing

(iii)         in the case of interwoven fencing, shall be suitably capped and framed

  • Freestanding electric fences must be set back by at least 1 metre from the boundary.
  • Electric fences and spikes are permitted on top of walls and fences.

These materials are not permitted:

  • Galvanized iron sheets
  • Asbestos-cement or fibre-reinforced sheets
  • Off-cut, untreated split-pole or sapwood timber (laths or latte) of any kind.
  • Razor wire and barbed wire, and embedded glass shards are not permitted on top of walls and fences

3. Industrial Areas

As above except that galvanized iron sheets, razor and bared wire are allowed on both street and lateral boundaries.

Authority to Erect a Boundary Wall or Fence or Electric Fence

Prior written authority to erect a boundary wall or fence or to install an electric fence must be obtained from Council in terms of the National building Regulations and other applicable laws.

[Note: The local authority has the right to demand plans for walls and fences that are higher than 1,8 m]

Deviations and Relaxations of the City of Cape Town Policy

Deviations and relaxations of the policy are permitted at the discretion of the District Manager. Any application for a deviation or relaxation must be accompanied by a full motivation including endorsement by the neighbouring property owners.

[So if you want to do something that is not normally allowed, your neighbour will have to agree – in writing. The same applies to your neighbour.]

Sources

Boundary Walls and Fences Policy. City of Cape Town, Directorate: Strategy & Planning; Department of Planning & Building Development Management; Development Policy & Processes Branch. January 2009.

Reader’s Digest Family Guide to The Law in South Africa. The Reader’s Digest Association South Africa (Pty) Ltd. Cape Town. 1986.

Jan 142014
 

The NHBRC has Deregistered
from VAT and Adjusted their Fees

NHBRC Fees Header NHBRC Fees

We have recently had a number of enquiries about how the NHBRC calculates the fees that have to be paid when a proposed new house is registered with them.

In 2011 the NHBRC was deregistered for VAT and they adjusted their registration fees accordingly.

Registration with the NHBRC

Every new home built in South Africa, since December 1999, must by law be registered with the NHBRC. No bank or home loan institution may lend money against the security of a mortgage bond unless the house is registered with the NHBRC. In addition to this the builder must be qualified, certified and registered with the NHBRC as well.

NHBRC Fees

In another article,  NHBRC Suspends the Payment of House Enrolment Fees-PA003 we highlighted how the NHBRC is no longer allowing the registration fee to be bundled together with the first draw that the home owner gets from the financial institution – referred to as the PA003. This now has to be done at the time of registration or the house will not be accepted onto the NHBRC’s system.

Here is a breakdown of how the fees are calculated. These are the most up to date figures that we could get and they could change so we advise you to check with your local NHBRC office for the most up to date figures. This table will give you a good idea as to how they have structured the fees and what you can expect to pay.

 NHBRC ENROLMENT FEE SCHEDULE excl VAT

Fee structure S NHBRC Fees

 

Dec 072013
 

The PAJA: A Law to Protect Your Rights

DeptJusticeHeader The PAJA: A Law to Protect Your Rights

We get questions daily about buildings blocking views, balconies overlooking neighbours’ bedrooms, building approval without neighbours’ consent, developers not putting in correct storm-water drains; complaints that the neighbours wall is on “my” property; the list goes on and on. People also want to know who they can contact to find out what the situation is, who approved the plans (if indeed they were approved), and how and why their neighbours are “getting away” with these activities. The good news is that there is a law in South Africa that was published in 2000 – The Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) – that was promulgated to protect you.

The Promotion of Administrative Justice Act (PAJA)

 

DofJ s The PAJA: A Law to Protect Your Rights>

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This piece of legislation is not well known, and it is there essentially to ensure that the government (and all its departments) act in a fair way when decisions are taken that might affect any individual. It is your basic human right to have just, fair and equitable administrative action.

The South African Constitution guarantees that any action taken by any administration in South Africa has to be reasonable, lawful and must follow procedures. It must also be fair in relation to all concerned.

The law covers all levels and all departments in all the provinces:

  • Departments at national, provincial or local government level,
  • The national, provincial and local legislatures,
  • The national and provincial executives,
  • The judiciary (or courts),
  • ‘Parastatals’ such as Eskom and Telkom.

We will refer to those that deal with building regulations and the building by-laws in South Africa.

Allowance has also been made for anybody to ask for an explanation from any of the government or municipal departments regarding why they made a certain decision. You also have the right to request reasons as to why a certain decision was made that negatively affects you. The law states that it is your right to ask for reasons and they cannot refuse you this right.

It is important to note that these requests and replies should all be done in writing. If you are given verbal response it’s you prerogative to accept it, but if you aren’t happy, you have every right to demand that it is given to you in writing. Of course it is always best to have this type of thing in writing, particularly when there is a substantial dispute.

The PAJA addresses the fact that if after reasons have been supplied there is still disagreement. If this is the case, then provision has been made for a review of “the administrative action” by a court or a tribunal.

Once you have identified something you are not happy with (either issues mentioned above or other problems you are facing) that you feel that the relevant department should have consulted or informed you about, you must follow the correct procedures:

  1. Request the reasons, in writing, from the department that made the initial decision. This must be done within 90 days of finding out the decision has been made. If you are not satisfied with the reasons given then…
  2. You must use the internal appeal procedure for that department (see below), if they have one. Not all departments have an internal appeal system. If they don’t you can then…
  3. Go to court (see below)
  4. Use other remedies (see below)

To help you we have two pdf documents as guidelines when making requests:

Form to request reasons PDF

Form for Prior Notice PDF

I want to request reasons for what has been allowed—What do I do?

Firstly and most importantly your request must be in writing. State clearly, with reference details, which decision your request is for. Next say why you think the decision that they made is wrong. You must include all your details including your full name, postal address, email, telephone/cellular phone contact details and/or fax number. Your letter can be sent by post, fax, email or delivered by hand. Make sure that you send faxes or emails to the correct address or number. It might be best to deliver your request so that you get a signature and proof of delivery. If you do deliver by hand, get a signature and full name of the person who takes the letter, and include the date and time next to the signature.

How will they respond? What reasons will they give?

They must not try to persuade you that their decision was the correct one. What they must do is give you a clear reason why and how they reached their decision. All your questions that you asked must be answered.

How long will they take to respond?

They must give you a satisfactory reply within 90 days of receiving the request.

Can they tell me the reasons over the phone?

All reasons should be in writing, unless you accept reasons given to you verbally. If not you have full right to ask them to please put their response in writing.

What is the appeal process? How does it work?

There are a few departments that have the facility for an internal appeal. If the department you are dealing with has such a procedure then you have to use this first before you can consider further action. Again you will have to put your demand in writing and say that you are not satisfied with the reasons given to you up until now. Then you request that the matter be taken to the relevant appeal section. The next step is to go to court.

How do I take my case to court?

If you are not satisfied with the reasons given to you by the appeal division, or if there is no appeal board, then you can take the matter to court. You must ask a court to review your case within six months of the internal appeal, or if there is no internal appeal, within six months of the decision. Unfortunately though the court review can be costly.

Are there any other cheaper options?

The internal appeal (if there is one) is usually free.

There are a few other options such as:

  • Asking a political party in your area to help,
  • Putting your complaint to the Provincial MEC for that particular department (eg the local authority’s planning department),
  • You can find out who the Minister is, and who is responsible for that department, and write to him/her and explain your problem.
  • There are quite a few non-government organisations (NGOs) that you could ask for help. These are usually free.
  • Paralegals are there to assist people in awkward situations.
  • If you suspect that there has been any corruption involved in a decision that affects you, then you can call the public protector and give them all the details. The toll-free number is 0800-112-040
  • There are legal aid boards and justice centres in most of the major centres that will assist you free of charge. You can ask the legal aid officer at your nearest court to arrange a lawyer, free of charge, to assist you. You can also call the legal aid board on 021-481 2700.
Dec 042013
 

What to do when you have Blocked Drains

Blocked Drains01W Blocked Drains

Blocked Drains02 Blocked DrainsDo your drains sometimes look like this, with smelly overflowing waste-water running into the street? Well a few days ago we had this problem. After a few tries with the plunger I gave it up as a bad job.

If you think that this is going to be an article on how to DIY and unblock your drains, you’re wrong. I called in the plumbers – and that’s what this is about. As I have an agreement with our landlord to check with him before incurring any expenses when it comes to essential maintenance of his property, I duly sent an email with a couple of pictures explaining the situation before taking action. When, after nearly a week there was no reply from him, I decided to go ahead anyway as the stench and health risk to everyone had to be sorted out. I phoned and asked the plumber for an estimate over the phone. This sounded reasonable, and I asked how soon they could get here.

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Blocked Drains06 s Blocked DrainsWithin 30 minutes of my call, the plumber – a company I had sourced myself, but which was highly recommended – was at the front door. What follows here is a step-by-step of what they found and how they fixed it.

 

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*A word of caution, if you are slightly prone to feeling queasy DO NOT read any further.*

Blocked Drains03 Blocked DrainsFirst they did a site inspection and located all the manhole covers. There are six plus one on the verge next to the road.

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Blocked Drains05 Blocked DrainsThe manhole next to the road seemed to be fine as there was nothing backed up.

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Blocked Drains07 Blocked DrainsThis is what they found. Disgusting sewage completely backed up and overflowing.

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Blocked Drains08 Blocked DrainsNext it was out with the “Big-Guns” – an industrial-strength rotating drain cleaner.

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Blocked Drains09 Blocked DrainsThe way it works is that the man at the septic pit feeds in the rotating coil with an attachment fitted to the front that is designed to clear the drain pipes. The second man attends to the machine and feeds the coil through.

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Blocked Drains12 Blocked DrainsOnce the blockage had been cleared, and the sewage had flowed away, then the coil was withdrawn and all the tree roots that had been blocking up the pipe were visible.

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Blocked Drains14 Blocked DrainsExtra lengths of the coil were then attached and re-inserted into the drain to make certain the blockage had been cleared.

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Blocked Drains13 Blocked DrainsThe extra lengths allowed the probe to go into the municipal line to check that it was clear.

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Blocked Drains15 Blocked DrainsThe next section to get sorted was the line from the kitchen that runs under the house.

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Blocked Drains16 Blocked DrainsThe same procedure was followed as before, with one person on the front and the other man working the machine.

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Blocked Drains18 Blocked DrainsAll sorts of unpleasant matter was extracted after a lengthy probe down the pipe.

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Blocked Drains20 Blocked DrainsA special long-handled plunger was used to clear the grease trap outside the kitchen.

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Pipe SquashS Blocked DrainsThese guys are the experts, but they found it particularly difficult to clear the drain under the house. They explained that the reason they struggled was because, without a concrete casing (which should have been in place), the weight of the soil and the house above it has gradually, over time, made the pipe oval (or irregular) in shape, which can cause blockages … and clearly this is what has happened.

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Blocked Drains06 s Blocked DrainsIf you see what these plumbers have to go through to sort out our problems, they are worth every cent they charge. And they have smiles on their faces.

Specifically, I can recommend these guys if you are in the Cape Town area. Contact Casa Plumbing and ask for Cheyenne (pronounced Shayne) or Anni on 073 228 4278

Nov 282013
 

NHBRC Suspends the Payment of House Enrolment Fees-PA003

NHBRC PA003 501 NHBRC Suspends Fees Included in PA003

The National Home Builders Registration Council (NHBRC) announced at the beginning of November 2013 that the home registration fees, that must be paid on all new houses, will no longer be allowed to be included in the first progress payment that is made to the home builder – the PA003. The notice quotes Regulation 1408  and 1410 and these deal with:

  • The procedures for registration and expiry of registration, the enrolment process and the appointment of competent persons.
  • Methods of payment for enrolment fees.
  • Rules for issuing of enrolment certificates
  • The responsibilities of the housing consumer and the home builder regarding complaints.
  • Procedures for the processing of complaints and disputes.

Regulation 1410 establishes the NHBRC registration fees.

What are the implications for the home owner?

The home builder/contractor or developer must now have enough financial as well as technical and managerial “capacity”. This would appear to put the burden on the contactor to register the new home and pay the required fees before building can start. The NHBRC clearly states that:
Mortgagees, conveyancers and provincial housing development boards may not:
lend money, effect transfers or allow development to proceed unless the home builder in each case is registered in terms of the Act and the home has been enrolled with the Council and the prescribed fees have been paid.

The risk is that if builders and developers do not adhere to these rules they will be liable to fines and being struck off the approved list of builders and thereby not have access to finances from morgage lenders.

 

Nov 272013
 

Great Bathroom Layout and Design Ideas

Bath Sharon 191 Bathroom Ideas

Over the years, the bathroom has earned a reputation as an area  unworthy of attention, probably because it has always been regarded as no more than a room in which to wash. Nobody can deny that this is still its most important function but, nevertheless, it seems a poor excuse for creating a whole generation of inhospitable bathrooms which offer very little in the way of comfort or ambience.

It is certainly possible to create a functional, hygienic and streamlined environment without sacrificing character and comfort. A bathroom is essentially a private area where one can close the door on the world and emerge soothed, refreshed and relaxed; a haven in which to bathe a tired body, restore flagging energy and unwind in blissful solitude. There are encouraging signs that more and more people are realising the full potential of this Cinderella room. Nowadays, bathrooms are designed as multi-functional envtronments which can accommodate a number of different activities – relaxation, reading, Iaundry, dressing and even exercise. To the uninitiated, creating or remodelling a bathroom may be a daunting prospect. The small selection of bathrooms below by Appleby Kitchens showcases the creativity that this company can give to any room in the house.

Bath Sharon 428 Bathroom Ideas

Bath Sharon 320 Bathroom Ideas

Bath Sharon 173 Bathroom Ideas

Bath Sharon 001 Bathroom Ideas

Bath Sharon 990 Bathroom Ideas

All these bathrooms were designed, manufactured and installed by Appleby Kitchens.

Contact Details:

Sharon Grant

Cell: 082 780 5104

Tel: 011 493 9663

011 493 6263

Fax: 011 493 8560

[email protected]

Website: http://applebykitchens.co.za/

ApplebyKitchensBlu Bathroom Ideas

 

Nov 242013
 

Engineers Design Buildings for a Purpose

Riga Latvia Mall Roof Engineers Specs Are Vital

A roof garden can clearly be seen under construction on the roof of the mall in Riga, Latvia

Engineers around the world will design a structure based on the brief given to them by a developer. The basis for any good design is to have a structure that is “fit for the purpose” for which it is intended. Most international building codes, and this includes our South African National Building Regulations, are very specific in terms of requirements. For instance, our National Building Regulations (NBR) state:

“Any building and any structural element or component” must be designed to “provide strength, stability, serviceability and durability”.

It is also vital that buildings are designed so that if the structural system is in any way overloaded they won’t collapse with disastrous consequences.

The Regulations also state that these design requirements shall be “deemed to be satisfied” when buildings are designed in accordance with the relevant Part of SANS 10400, in this case, Structural Design.

Roof Design of Riga Mall

Even though the devastating collapse of the roof at Riga Mall in Latvia on Saturday November 23, 2013 is currently under investigation (as at 24th November) there is some certainty that a roof garden being constructed on the roof of the mall played a significant role.

The engineers who designed the mall roof clearly did not intend for the roof structure to carry the extra weight that was being imposed on it. Tons of soil, concrete pavers and possibly water features, as well as many people walking on the roof, would put tremendous additional strain on a structure that was not engineered to carry such loads.

So why are people surprised it collapsed?

 

Aug 072013
 

Great Kitchen Layout and Design Ideas

The kitchen, say the experts, will sell the house: an axiom that can’t be proved but which nevertheless rings very true. It is part of today’s house that, more than any other, will yield handsome dividends on your investment – providing you plan sensibly, choose the kitchen’s specific components carefully and apply good taste when it comes to decor.

It is an integral part of our daily lives, and as such, it should function with ease, and not be an endless source of annoyance because it has been badly planned: a cupboard that opens the wrong way or an appliance fitted in an awkward position can cause continual frustration to the harassed cook.

The principal aim of this post is to impart advice and ideas, both functional and imaginative, to those South African home owners who are thinking of fitting out from new or remodelling.

We hope you will find some good ideas in this enticing range of South African designs.

 

 

 

Appleby kitchen 001 Kitchen Ideas

A wide open kitchen in contrasting light and dark colors.

Appleby Kitchen 015A s Kitchen Ideas

This small design has made perfect use of every bit of available space to have ample working surfaces and cupboards.

Appleby Kitchen 114 s Kitchen Ideas

This open-plan kitchen boasts a practical centre island with space for hi-stools can double-up as a counter for eating breakfast or for having a social cup of tea.

Appleby Kitchen 303 s Kitchen Ideas

An eclectic retro-look with a rustic brick backing to the custom coloured stove. The practical and easy to clean floor follows the brick theme whilst shelves reflect the stove colour.

Appleby Kitchen 356 s Kitchen Ideas

A neat design for a bachelor pad with all fridges and storage areas concealed behind glossy dark stained oak.

Appleby Kitchen 411 s Kitchen Ideas

This room is the heart of the home where the family can get together even whilst food is being prepared.

Appleby Kitchen 974 s Kitchen Ideas

A classic design with a large centre island where meals can be prepared, as well as plenty of storage space below.

 

All these kitchens were designed, manufactured and installed by Appleby Kitchens.

Contact Details:

Sharon Grant

Cell: 082 780 5104

Tel: 011 493 9663

011 493 6263

Fax: 011 493 8560

[email protected]

Website: http://applebykitchens.co.za/

ApplebyKitchensBlu Kitchen Ideas

Jun 252013
 

City of Cape Town Zoning Scheme Regulations

table mtn1 Cape Town Zoning Scheme

We have included this Cape Town Zoning Scheme Regulations document to assist you with accessing the the correct information so that you can make the right decisions when it comes to planning any construction, building and renovation or the purchase of property with developement in mind. This Town Planning Scheme applies to all properties within the municipal boundaries of the City of Cape Town, as determined by the Municipal Demarcation Board.

 

Chapter 1 contains introductory information, including the date when the zoning scheme became operative and the area to which it relates. The components of the zoning scheme and general purposes of zoning are described.
Chapter 2 deals with certain procedures and requirements relating to applications, decisions, conditions of approval, transitional provisions and methods of correcting errors on the zoning map.
Chapter 3 deals with general principles relating to the zoning and use of property, describing the difference between primary uses and consent uses. It also makes reference to uses not permitted and describes how temporary land uses should be dealt with.

The Zoning Categories covered are:
Single Residential Zones
General Residential Zones
Community Zones
Local Business Zones
General Business and Mixed Use Zones
Industrial Zones
Utility, Transport and National Port Zones
Open Space Zones
Agricultural, Rural and Limited Use Zones

You must download the Zoning Scheme Map Overlays (Part 2)
and read them in conjunction with the Part 1 document below.
Download: “Cape Town Zone Scheme_Regulations_Nov_2012_Part 2″

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Jun 232013
 

New Electric Fence Legislation Sends Shock Waves throughout South Africa

ElectricFenceX690 New Electric Fence Law

Photograph: Janek Szymanowski

Penny Swift,  23 June, 2013

When the regulations regarding an electric fence were changed in 2011, nobody paid much attention. But now that the authorities are enforcing the regulations, people are totally shocked and all fired up.

Yesterday a homeowner living in a “wealthy” Pretoria suburb was interviewed on eNCA. She said: “I think it is absolutely crazy. I mean we must try and do absolutely everything in our power to safeguard ourselves and the police don’t have the manpower to keep you safe.” The woman told how three would-be burglars had accessed her property and were trying to break through her front door. She said she ran to get her “pistol” and fired at them. The implication was that not even her electric fence had stopped them. But it wasn’t clear whether her electric fence, if there was one, was compliant with the new regulations – or even up to standard in terms of the relevant SANS.

She seemed to be outraged that if people did not comply with the new electric fence legislation, and a criminal was injured by the fencing, the owner could be held liable. Sure it may seem unfair that you could be charged in these circumstances. But if the woman interviewed on eNCA had hit one of the intruders and killed him when she fired her pistol, she could have been charged with murder.

Beeld ran a story on 12 June that quoted Marike van Niekerk, legal manager of MUA Insurance Acceptances: ”The law requires that only certified installers may erect fences. All installers of electric fences must undergo an examination by October this year  before they can be accredited. There are very few certified installers. The Association of South African Electric Fence Installers expected that by October there will only be 300 accredited installers in the country. Not only will the owner have legal fees to pay, but he also runs the risk of criminal prosecution.”

Why is this an issue? We are expected to use qualified building contractors to build our homes. The law says that all electrical work must be carried out by qualified, registered electricians; and that only qualified, registered plumbers may do plumbing work. And we need both electric and plumbing certificates of compliance (COCs) for our newly built homes. In coastal regions, houses cannot be sold without beetle certificates, to ensure that woodwork is not infested.

These compliance issues are in the interests of you and me – as are the newly amended regulations that affect electric fencing. Well, that’s the general idea.

The main issues raised by the media recently are that if property owners don’t comply with the regulations, and get a COC from a registered company:

  • insurance claims may be rejected
  • property owners may be held liable if someone is injured by an electric fence, even if that person is a criminal

Let’s get this into persepctive. If you don’t comply with the National Building Regulations (NBR) and your house falls down, insurance isn’t going to pay. If you don’t have an electrical COC, and your house burns down because of faulty wiring, insurance certainly won’t pay. If you build a staircase that doesn’t comply with the NBR, and someone falls down and breaks a leg, you can be held liable and be forced in a court of law to pay substantial damages.

Electricity is potentially lethal. Would you really consider getting a company that is not qualified to install an electric fence to do the job? … even if they were cheaper? The new registration process is intended to ensure that you and I know who is qualified and who is not.

So What is the Problem?

The main problem is that, as the Beeld article points out, there are very few people who are registered in terms of the new legislation, which should have been enforced from October last year. According to the South African Electric Fence Installers Association (SAEFIA), electric fence installers who are “qualified” may, and have been, granted temporary licenses to issue COCs. But to get a permanent license, it is necessary to pass a test (see next section below). The deadline for registration has been extended to September 2013.

The other problem relates to the COC itself, which must be updated in certain circumstances, including when a property is sold, and where tenants lease a property.

The Amended Regulations

The regulations that apply to electric fences, are the Electrical Machinery Regulations, and they fall under the Occupational Health and Safety Act, 1993. Until 25 March 2011, when the new Electrical Machinery Regulations were published in the Government Gazette, electric fences were governed by the rather sketchy Electrical Machinery Regulations, 1988 – as well as the relevant South African National Standards (SANS), including SANS 60335-2-76.

It should be noted that the regulations do not only deal with electric fencing, but cover all types of electrical machinery, portable electric tools, portable electric lights, overhead power lines, and personal protective equipment for electrical work. You can download the “new” 2011 Electrical Machinery Regulations HERE.

In the new regulations, an electric fence means “an electrified barrier consisting of one or more bare conductors erected against the trespass of persons or animals”. A person registered as an electric fence system installer is required to have “sufficient knowledge of the safety standards applicable to electric fence systems”. Further, proof of “electric fence system installer proficiency” must be given before registration will be approved.

But this doesn’t mean old electric fences need to be replaced. As long as they comply with the old 1988 regulations, they are perfectly legal. And if they comply, there is no reason why they shouldn’t qualify for a COC. This is important, because if a property is sold, a COC is required (see 2 below).

The regulations state that every “user or lessor” (which implicates tenants) of a new electric fence system must have a COC “Provided that such certificate shall be transferable”. Electric fence systems installed prior to 1 October 2012 don’t require a COC unless:

  1. they have been added to or altered,
  2. there is a change of ownership of the premises.

The Law and Electric Fencing: A Pocket, Ready-Reference to the Legal Dos And Don’ts of Electric Fencing In South Africa is available FREE from SAEFIA, or you can download it HERE.

 

 A LEGAL PERSPECTIVE

The following story, originally published in De Rebus (The South African Attorneys’ Journal published by the Law Society of South Africa) will be of critical interest to all home owners, property developers, body corporates, estate agents and anyone involved in the security industry.

New certificate requirement for electric fence systems

By Carol McDonald

It is important for practitioners dealing with a change of ownership of immovable property to be aware of the latest developments in terms of the Occupational Health and Safety Act 85 of 1993 (the Act) regarding electric fences.

Regulation 12 of the Electrical Machinery Regulations, 2011 imposes an obligation on the user of an electric fence system to have an electric fence system certificate of compliance.

The requirement does not apply to a system in existence prior to 1 October 2012. However, as with an electrical compliance certificate, this certificate will be required where an addition or alteration is effected to the system or where there is a change of ownership of the premises on which the system exists if the change of ownership takes place after 1 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.

It will also be necessary to include an appropriate clause in sale agreements concluded after 1 October 2012 if there is an electric fence system on the property.

A transfer registered after 1 October 2012 therefore triggers the obligation to provide a certificate. It will thus be necessary to arrange for an electric fence system certificate if an electric fence system exists on a property that is in the process of being transferred.

The certificate is however transferable: Once it has been issued, there is no need to obtain a new one on a change of ownership.

Three questions arise in response to the above:

• Who is the user in respect of sectional titles? Must the owner of a unit obtain a certificate when the unit is transferred?

• If a property on which an electric fence system is situated is sold and the sale agreement is silent on, who is to obtain the certificate, who is responsible for ensuring that it is obtained?

• If a property is leased and the lease is silent on the issue, who is responsible for the certificate – the lessor or the lessee?

The regulations do not provide clear answers to these questions and they therefore require amendment.

In the interim, I submit the following comments.

Who is the user in a sectional title scheme?

The common property in a sectional title scheme comprises the land and permanent attachments to it that are not included in sections (s 1(1) of the Sectional Titles Act 95 of 1986 and GJ Pienaar Sectional Titles and Other Fragmented Property Schemes 1ed (Cape Town: Juta 2010) at 72).
An electric fence system erected on the common property forms part of the common property and is therefore owned in undivided shares by the sectional owners in the scheme (s 2(c) of the Sectional Titles Act).

A general duty is imposed on a body corporate to control, manage and administer the common property for the benefit of all owners (s 37(1)(r) of the Sectional Titles Act).

‘User’ is not defined in the Electrical Machinery Regulations, whereas the Act defines ‘user’ as:
‘[I]n relation to plant or machinery, means the person who uses plant or machinery for his own benefit or who has the right of control over the use of plant or machinery, but does not include a lessor of, or any person employed in connection with, that plant or machinery.’

A body corporate falls within the definition of ‘user’ as it exercises the ‘right of control’ over an electric fence system erected on common property.

The owner of a sectional title unit, likewise, falls within the definition of ‘user’ as each unit owner has the ‘benefit’ of the system. In addition, the body corporate is required to exercise its control for the benefit of all the sectional owners (CG van der Merwe Sectional Titles, Share Blocks and Time- sharing vol 1 Service Issue 14 (Durban: LexisNexis 2012) at para 14 2 14 11).

In respect of existing electric fence systems, a certificate is required only if there is a change of ownership of the land on which the system is situated.

The land does not form part of a sectional title unit being transferred. However, as the sectional owner’s undivided co-ownership in the land is an accessory to the section (GJ Pienaar (op cit) at 65), a change in ownership of a unit brings about a change in co-ownership of the land. The transfer of a unit will trigger the application of reg 12, which stipulates that every user of an electric fence system shall have an electric fence system certificate.

Unlike a certificate of compliance required in terms of the Electrical Installation Regulations, 2009, where the user or lessor may not allow a change of ownership if the certificate is older than two years, there is no such provision in the Electrical Machinery Regulations. As stated above, the electric fence system certificate is transferable and does not expire.

I submit that a separate certificate is not required by every sectional owner. If there is a change of ownership of a unit in a scheme, by virtue of the change of ownership in the common property, the body corporate should be obliged in terms of reg 12 to obtain an electric fence system certificate of compliance. Thereafter, if a sale agreement requires a seller to produce a certificate, a certificate issued to the body corporate and produced to the conveyancer in respect of the transfer of any sectional title unit in the scheme would be sufficient to comply with the requirements of reg 12.

Responsibility for obtaining the certificate

As stated above, reg 12 of the Electrical Machinery Regulations stipulates that ‘every user or lessor’ of an electric fence system shall have an electric fence system certificate.

This wording is similar to that of reg 7 of the Electrical Installation Regulations, which stipulates that ‘every user or lessor of an electrical installation, as the case may be, shall have a valid certificate of compliance’.

Regulation 12 differs from reg 7 in that the former stipulates that ‘if there is a change of ownership … the user or lessor shall obtain an electric fence system certificate’, whereas the latter provides that ‘the user or lessor may not allow a change of ownership if the certificate of compliance is older than two years’.

Regulation 12 does not prohibit the transfer of ownership in the absence of a certificate. It does, however, place an obligation on the ‘user’ to obtain a certificate.

Although there may be a difference of opinion on this point, I submit that there is nothing in the regulations to prohibit transfer in the absence of a certificate and it is the purchaser who would be in violation of the regulations once transfer has passed.

The obligation therefore falls on the purchaser to obtain the certificate.

There is no obligation on the conveyancer to obtain the certificate on behalf of the transferee unless the agreement of sale specifically places that obligation on the conveyancer.

Conveyancers must peruse the sale agreement and establish whether reference is made to the certificate. Provided that the agreement of sale does not prohibit it, transfer may be registered without a certificate having been obtained.

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 imprecise wording of the regulation and it protects the purchaser.

Penalty

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.

Lease – who is responsible for the certificate?

If a property is leased, and the lease is silent on the issue, who is responsible for the certificate – the lessor or the lessee?

The Act’s definition of ‘user’ specifically excludes the lessor, while reg 12 specifically includes the lessor. But it is the lessor of the electric fence system that is referred to in reg 12, not the lessor of the premises on which the system exists – a distinction that creates ambiguity rather than clarity.

It is unclear why the drafters specifically included the lessor.
Applying the definition in the Act, the user is the person who ‘uses … for his own benefit or who has the right of control over the use’ (my emphasis).

Who has the right of control? The lease in each case will determine the answer to this question. In a property with a single tenant, the system may be controlled by the lessee or the lessor. In a multi-tenanted building it is likely that the lessor will control the system. The body corporate will control the system where the lease pertains to a sectional unit in a sectional title scheme.

Who is using the system for their own benefit? The landlord benefits from the existence of the system on the property that he is renting out. However, the tenant also benefits. Without clarity in the wording of the regulation, one must apply common sense. It would be inequitable to require a tenant to obtain a certificate because the landlord has sold the property. The landlord should therefore obtain the certificate.

Nonetheless, it would be prudent to include a clause in the lease to address this issue.
It is hoped that there will be amendments to the regulation to provide more clarity on these issues.

Conclusion

In summary:

• A sectional title owner need not obtain a certificate. Following a change in ownership of a sectional unit, a body corporate should obtain a certificate.

• Unless a sale agreement provides otherwise, the purchaser of a property must obtain a certificate.

• A landlord should obtain a certificate for leased property.

Carol McDonald LLB (UKZN) BCL (University of Oxford) is an attorney at Cox Yeats in Durban.