Certificaters of Compliance

Author : Dykes, van Heerden – ATTORNEYS & CONVEYANCERS

ELECTRICAL COMPLIANCE CERTIFICATE – A REQUIREMENT IN LAW:

There is an obligation in Law that when property is transferred, there is in existence a valid electrical compliance certificate or the obligation to obtain an electrical compliance certificate. This onerous obligation is most often placed on the Seller and is one that 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:-

1.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 effected 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 an addition or alteration or a new certificate of compliance for the whole installation: Provided further that such certificate shall be transferable.

2.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.

3.Sub-regulation (1) shall not apply to electrical installations existing prior to the coming into force of these regulations:
Provided that, if –
a. any addition or alteration is effected to such an installation; or
b. 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, where after the provisions of sub-regulation (1) shall be applicable to such installation.”

What is a valid electrical compliance certificate?
A valid electrical compliance certificate is a certificate issued by an electrician who is accredited by the Electrical Board, who after having inspected the premises issues a certificate confirming that the electrical installations, alterations or additions on the said premises comply with the requirements as is 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 his possession which is capable of being transferred. However, there is no provision in the regulations to force an existing owner to hand over or to transfer the electrical compliance certificate to the new owner. The new owner is, however required in terms of the regulations to have in his possession an electrical compliance certificate which he needs 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 him at 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 done to the installation.

Does a new owner have any recourse if he finds himself in possession of an electrical compliance certificate even though the electrical work is defective?
A new owner who finds himself in this unfortunate predicament may lodge a compliant with the electrical board who will then send out an inspector to investigate the complaint and if it is established that the electrical compliance certificate is defective, 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 a 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 the other. 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 make provision 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 whereafter he would determine whether the electrical certificate was indeed lost, damaged or destroyed and based on his findings, he 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 be ordered to either pay a fine or sentenced to imprisonment.
In conclusion an electrical compliance certificate is most definitely a legal requirement. It is accordingly advisable that one deals with the Electrical Compliance Certificate in the Agreement of Sale and further advisable that one has an electrical compliance certificate in his possession prior to transfer.