ELECTRIC FENCE COMPLIANCE IN TERMS OF THE OCCUPATIONAL HEALTH & SAFETY ACT NO. 85 OF 1993

The Electrical Machinery Regulations (“the Regulations”) published in terms of the Occupational Health & Safety Act No. 85 of 1993 (“the Act”) have provided for certain obligations upon transfer of a property.

The Regulations, which came into effect on the 1st of July 2011, with Regulation 12(4) only coming in to operation on 1 October 2012, now require an electric fence system certificate(a “certificate”) to be issued upon the transfer, or the erection of an electric fence, in respect of any property after the 1st of October 2012.

The Regulations define the party responsible for obtaining the electric fence system certificate as the “user or lessor” of the electric fence system. Accordingly, if your property has an electric fence system, or you lease out a property with an electric fence system on it, which electric fence system has been installed after the 1st of October 2012, you will be required to be in possession of a certificate.

In terms of Regulation 12(5), a certificate must be obtained for an electric fence system which was installed prior to 1 October 2012 where

“(a) any addition or alteration is effected to such electric fence system; or

 (b) there is a change of ownership in respect of the premises on which such electric fence system exists after 1 October 2012.”

Free Hold Properties and Regulation 12(5)(b)

The wording of Regulation 12(5)(b) is somewhat ambiguous as it does not state whose responsibility it is to obtain such a certificate. It simply states that where there is a change of ownership, a certificate must be issued. The regulation does not seem to stipulate that this must be done prior to transfer. All that the Regulations require is that the “user or lessor” must be in possession of a valid certificate where there is a change of ownership.

A simple way of remedying the ambiguity of the Regulations is to ensure that your sale agreement requires the seller to obtain a certificate, which certificate is in any event transferable, prior to passing transfer of the property.

Sectional Title Schemes and Regulation 12(5)(b)

Another anomaly that has occurred as a result of these regulations being published is the question of who must be in possession of the certificate in respect of Sectional Title Schemes. As is sometimes the case in sectional schemes, electric fences will be found on the boundary of the entire scheme. Ownership of the common property rests with scheme members in undivided shares and it is one of the duties of the body corporate to maintain the common property to the benefit of the owners of the units within the scheme. 

Accordingly, it would seem appropriate that the body corporate be in possession of a certificate in respect of an electric fence as they are effectively the “user” of the electric fence system. In this manner, the owners of individual units would not be required to be in possession of separate certificates in order to comply with the Regulations. This is, however, still to be tested.

 

 

 

Written by:               Daniel Van Zuydam (Candidate Attorney)

  • Added 27 March 2013

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