In the recent past there have been some pertinent changes associated with the regulations regarding requirements to be obtained in the event of the transfer of a property.

One such change is regulations regarding electric fencing which is addressed in terms of the Occupational Health and Safety Act 85 0f 1993. One needs to consider Regulation 12 of the Electrical Machinery Regulations (the Regulations) of 2011. This regulation imposes an obligation on the user of an electric fence system to have an electric fence system certificate of compliance.

The requirements only applies to systems that came into existence after 1 October 2012, however it will apply where alterations or additions are effected to the system or where the premises on which the system is present changes ownership after this date.

Any transfer after 1 October 2012 where an electric fencing system is installed therefore requires the obligation to provide a certificate. This certificate is separate from an electrical compliance certificate. Real estate agents would do well to familiarize themselves with this new regulation in order to assist the purchaser/seller as well as the transferring attorney in order to prevent any unnecessary delays in the transfer of the property.

The electric fencing certificate is transferable and once it has been issued there is no need to obtain a new certificate should there be a change of ownership.

Some interesting questions however arise from this new regulation. In particular in respect of a sectional title scheme the question is raised who the user would be? It is obvious that the electric fence system would form part of the common property in such a scheme. A fence thus erected is therefore owned in undivided shares by the various sectional title owners in the scheme. The regulation makes no provision for the definition of a “user”. It is however contended that a body corporate falls within the definition of a “user” as intended in the Sectional Title Act. This would be as the body corporate exercises, as part of its function, the control over the electric fence as it is erected on the common property.

It might be argued that the owner of a sectional title unit would also fall under the definition of a “user” in the Act due to the owner receiving a benefit from the system. It is however the contention that it was not the intention of the regulation that every sectional title owner must submit a separate certificate of compliance on the sale and transfer of a sectional title unit. Bear in mind that the certificate of compliance is transferable and is only required where there is a change of ownership in the land on which the system is erected. Where a sectional title owner sells his unit, it would not constitute the ownership of land on which the unit is located.

It is therefore suggested that where there is a change of ownership of a unit in a sectional title scheme (for the first time after 1 October 2012), that a separate certificate of compliance for each sectional title owner would not be required. Due to the change of ownership in the common property, the body corporate would be obliged to obtain the certificate and this certificate should be sufficient proof of compliance with the requirements of the Regulations in respect of the transfer of any further sectional title scheme units in this scheme.

A sectional title owner in our opinion need not obtain a compliance certificate relating to the electrical fencing system of the scheme, but this duty lies with the body corporate.

The author of this article is Nico Humphries from Just Legal, a division of the Just Property Group.
For more information contact him on 031 764 6609 or [email protected]

Shirley Williams Communications
Shirley Williams 031 564 7700 or 083 303 1663
E-mail: [email protected]