- Electrical Certificates
There is an obligation in law that when a property is transferred, a valid electrical compliance certificate must exist or there is an obligation to obtain one. This onerous obligation is most often placed on the seller and extends beyond a mere contractual obligation, as it is governed by statute, namely, the Occupational Health and Safety Act of 1993 (as amended) (hereinafter referred to as “The Act”) and the Electrical Installation Regulations of 1992 (hereinafter referred to as “the Regulations”). The relevant Regulations when dealing with immovable property are as follows:
– Subject to the provisions of sub-regulation (3), every user or lessor of an electrical installation, as the case may be, shall have a valid certificate of compliance in respect of every such installation.
– Provided that where any addition or alteration has been made to an electrical installation for which a certificate of compliance was previously issued, the user or lessor of such an installation shall obtain either a certificate of compliance for such addition or alteration or a new certificate of compliance for the whole installation; provided further that such certificate shall be transferable.
– Every user or lessor of an electrical installation, as the case may be, shall on request produce the certificate of compliance for that installation to an inspector or the supplier.
– Sub-regulation (1) shall not apply to electrical installations existing prior to the coming into force of these Regulations; provided that:
– if any addition or alteration is made to such an installation; or
– if there is a change of ownership of the premises on which such an installation exists after 1 January 1994, the user or lessor of the electrical installation, as the case may be, shall obtain a certificate of compliance for the whole installation, whereafter the provisions of sub-regulation (1) shall be applicable to such installation.
Commonly Asked Questions:
- What is a valid electrical compliance certificate?
A valid electrical compliance certificate is a certificate issued by an electrician accredited by The Property Practitioner’s Regulatory Authority, who, after inspecting the premises, issues a certificate confirming that the electrical installations, alterations, or additions on the said premises comply with the requirements as set out in the Act and Regulations.
– Who needs to obtain an Electrical Compliance Certificate when transferring property?
It is the general practice that an owner, before transferring property, obtains the necessary electrical compliance certificate or has one in their possession that is capable of being transferred. However, there is no provision in the Regulations to force an existing owner to hand over or transfer the electrical compliance certificate to the new owner. The new owner is, however, required in terms of the Regulations to have in their possession an electrical compliance certificate, which they need to provide if required to do so by an inspector appointed in terms of the Regulations. This is irrespective of whether one was supplied to them at the registration of transfer. It is therefore advisable that an offer to purchase contains a clause that places the onus on either one of the contracting parties to obtain the said certificate. Should there be no clause in the contract of sale, then the Act and the Regulations will apply.
– When does an Electrical Compliance Certificate expire?
The Act is silent as to what the validity period of an Electrical Compliance Certificate is, and it can accordingly be concluded that the said certificate would be valid indefinitely. However, the Act does state that if any additions or alterations have been carried out on the installation or on the electrical works on the property, the owner would have to obtain a new Electrical Compliance Certificate or a Compliance Certificate that covers the necessary changes to the property. A new owner cannot insist, in the absence of a contractual obligation, that the existing owner obtains a new electrical compliance certificate unless, of course, there were additions or alterations made to the installation.
– Does a new owner have any recourse if they find themselves in possession of an electrical certificate even though the electrical work is defective?
A new owner who finds themselves in this unfortunate predicament may lodge a complaint with the Property Practitioners Regulatory Authority, which will then send out an inspector to investigate the complaint. If it is established that the electrical compliance certificate is defective, they will declare the said certificate invalid. The person who is contractually liable for furnishing a valid electrical compliance certificate will then have to effect the necessary repairs and obtain a new electrical compliance certificate.
– Is there any duty on conveyancers who are transferring property to a new owner to ensure that the electrical compliance certificate is available?
This is a frequently asked question by many new owners, especially in circumstances where an electrical compliance certificate has not been provided for one reason or another. In answering this question, one would have to look at the contract. The Law Society of the Northern Provinces has stated that:
“The Regulations place no legal or professional duty on a conveyancer to ensure that a valid certificate is issued or an existing one is transferred during the registration of transfer procedure in the deeds office unless it is specifically stipulated in the contract that the conveyancer must supervise the situation. In such case, it will be the professional duty of the conveyancer to ensure that the certificate is obtained before registration.”
– What is the position if one were to lose, damage, or destroy an Electrical Compliance Certificate?
The Regulations provide for one to apply for a duplicate copy of the Electrical Compliance Certificate from the Chief Inspector. An application would have to be made to the Chief Inspector, who will determine whether the electrical certificate was indeed lost, damaged, or destroyed. Based on their findings, they will then issue a duplicate electrical compliance certificate.
– What is the position in respect of units in a Sectional Title Scheme?
When transferring a unit in a Sectional Title Scheme, the Act and the Regulations do not require that an electrical compliance certificate be supplied for the entire scheme, but merely for the said unit being transferred.
– What are the implications of non-compliance?
Any person who contravenes the provisions of the Act or the Regulations shall be guilty of an offence and, if convicted, may be ordered to pay a fine or sentenced to imprisonment.
In conclusion, an electrical compliance certificate is most definitely a legal requirement. It is advisable to address the Electrical Compliance Certificate in the Agreement of Sale and further advisable to have an electrical compliance certificate in one’s possession prior to transfer.
It’s been more than twenty years since property owners accepted the responsibility to be in possession of an electrical compliance certificate in terms of the Occupational Health and Safety Act. Sellers now, almost as a matter of course, accept the obligation to pass on to their buyers a proper Certificate of Compliance at their own expense. Recent amendments to the law provide that the new user must be in possession of a certificate not more than two years old.
The law, however, has never burdened sellers with this responsibility and to this day, it provides only that, upon a change of ownership of a property, the user (that is, the buyer) shall be in possession of the required electrical certificate. If the sale contract says nothing about whose responsibility this will be, it will remain the buyer’s responsibility to obtain the required certificate of compliance.
- Gas Certificates
In more recent times, the Act has been amended to include gas appliances in addition to electrical systems. With load-shedding a constant threat and with Eskom constantly seeking price increases around 16% per annum (to compensate for the company’s failure to extend its power stations to meet increased demand even after it was warned many years ago to develop its power supply immediately), many South African homeowners have elected to install gas appliances instead, guaranteeing power at all times.
These systems, however, carry similar risks to electrical appliances and new laws have been brought in to control gas appliances as well. The risk here is far greater than it is with a property’s electrical supply—gas appliances can explode and cause massive damage and loss of life when they do.
Regulation 17(3) of the Health and Safety Act, introduced in July 2009, is the legal prescription that covers gas appliances. Regulation 17(2) provides that ‘after installation or re-installation, and before commissioning a gas system, the user shall ensure that an external inspection and a leak test are performed by an authorised person or approved inspection authority.’ The next regulation, the crucial one, provides that an ‘authorised person or approved inspection authority shall issue a certificate of conformity after completion of a gas installation, modification, alteration, or change of user or ownership.’
It says no more, making no reference to or provision for appliances and gas installations introduced to a property prior to 2009. The effect of all this is that the only installations covered by the Act are new ones or reinstallations introduced since the promulgation of the amendments to the Act in 2009. The law makes no provision for installations done prior to this date.
Like normal electrical certificates, if the sale contract does not bind the seller to provide a valid gas certificate to the purchaser, the latter must assume the responsibility to acquire one at their own expense. Property practitioners are, as a rule, not fully informed on these matters, and most sales of properties with gas appliances are being concluded without any attention being paid to their gas installations. If these predate 2009 on any property sold, the seller will have no responsibility to the purchaser to provide the required certificate. The problem will be the purchasers alone.
Installations since the inception of the amendments to the Act are heavily controlled by law. The amended Regulations covering recent gas installations prescribe fixed standards affecting the design, use, production, repair, replacement, and modification of any gas system on a residential or industrial property. These Regulations came into effect on 1 October 2009. The law requires the user of a property to arrange an internal inspection and leak test by an authorised person of a new installation before that system can be put to use.
Contrary to many websites and media advice in this respect, the law only obliges a new user of a property to acquire such a certificate and, if the sale contract does not bind the seller to comply with the law, the buyer will assume full responsibility to do so.
- Electrical Fence Certificate
The Electrical Machinery Regulations, which are also part of the provisions of the Occupational Health and Safety Act of 1993, have recently been amended to include electric fences as well. It is standard practice these days for an owner of a newly built home or a seller of an existing home to acquire a standard electrical certificate of compliance covering all the installations on the property. Regulation 12.4, which came into operation in October 2012, provides that any owner of a property with an electrically controlled fence around the property must have a separate electrical certificate in addition to the normal one to cover the electric fence as well. Once again, however, the law only applies this prescription to electric fences introduced in December 2012.
Older electric fence installations only need to conform to the required SABS standards in this respect. Many homeowners will have to upgrade their electrical fencing to comply with the Act as they can be held accountable for any fencing failing to meet these standards.
They are not, however, obliged to obtain a valid certificate of compliance in this respect or hand one over to their buyers upon the sale of their properties. Any failure, once again, to mention this requirement in a deed of sale will leave the buyer with the obligation to comply with the law themselves.
All property purchasers need to be aware that there are no laws obliging sellers to furnish them with the required gas or electric fencing compliance certificates when the existing installations on the property were present before the amendments to the Act came into effect.
Most agency contracts, and not the law, place the burden on sellers to furnish their buyers with normal electrical certificates at their own expense.
- Entomological Certificates
An entomologist certificate certifies that the property in question is free from wood-destroying insects. The entomologist certificate, also sometimes referred to as a pest or beetle certificate, must be issued by an entomologist registered with the South African Pest Control Association. The certificate is not a statutory requirement but, over the years, it has evolved into somewhat of a standard practice. Parties to a property sale agreement can elect to contract out of this requirement, but insurance companies and financial institutions usually require this certificate as a condition for the granting of finance or insurance coverage for the property.
Again, the seller is only responsible for obtaining the certificate as well as paying all costs for the certificate and work to be done should an infestation be found, if it is a provision in the offer to purchase. The parties may, however, agree in the sale agreement that the certificate is not a requirement for the sale. In such a case, should the financial institution or insurance company require it for the purchaser’s bond or insurance cover, then the purchaser should be responsible for the cost of the certificate.
The certificate does not cover pest control, normal degradation of wood, or swelling of wood due to moisture. It only certifies that the property is free from insects that destroy or bore through wooden structures. The entomologist will inspect the property and issue the certificate if no infestation is found. If there is an infestation, the entomologist will submit a quotation for work to be performed and once the problem is eradicated, they will issue the certificate. The certificate is only valid for three months, after which a new one must be obtained.
- Plumbing Certificate
The City of Cape Town has gazetted a new Property Sales by-law that is now in effect. Just like the Electrical Certificate of Compliance (COC), a Plumbing COC is now needed when a property is being sold in the City of Cape Town Metropole.
Reasons for the New By-law:
