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