New Electric Fence Legislation Sends Shock Waves throughout South Africa

ElectricFenceX690

Photograph: Janek Szymanowski

Penny Swift, 23 June, 2013

When the regulations regarding an electric fence were changed in 2011, nobody paid much attention. But now that the authorities are enforcing the regulations, people are totally shocked and all fired up.

Yesterday a homeowner living in a “wealthy” Pretoria suburb was interviewed on eNCA. She said: “I think it is absolutely crazy. I mean we must try and do absolutely everything in our power to safeguard ourselves and the police don’t have the manpower to keep you safe.” The woman told how three would-be burglars had accessed her property and were trying to break through her front door. She said she ran to get her “pistol” and fired at them. The implication was that not even her electric fence had stopped them. But it wasn’t clear whether her electric fence, if there was one, was compliant with the new regulations – or even up to standard in terms of the relevant SANS.

She seemed to be outraged that if people did not comply with the new electric fence legislation, and a criminal was injured by the fencing, the owner could be held liable. Sure it may seem unfair that you could be charged in these circumstances. But if the woman interviewed on eNCA had hit one of the intruders and killed him when she fired her pistol, she could have been charged with murder.

Beeld ran a story on 12 June that quoted Marike van Niekerk, legal manager of MUA Insurance Acceptances: “The law requires that only certified installers may erect fences. All installers of electric fences must undergo an examination by October this year before they can be accredited. There are very few certified installers. The Association of South African Electric Fence Installers expected that by October there will only be 300 accredited installers in the country. Not only will the owner have legal fees to pay, but he also runs the risk of criminal prosecution.”

Why is this an issue? We are expected to use qualified building contractors to build our homes. The law says that all electrical work must be carried out by qualified, registered electricians; and that only qualified, registered plumbers may do plumbing work. And we need both electric and plumbing certificates of compliance (COCs) for our newly built homes. In coastal regions, houses cannot be sold without beetle certificates, to ensure that woodwork is not infested.

These compliance issues are in the interests of you and me – as are the newly amended regulations that affect electric fencing. Well, that’s the general idea.

The main issues raised by the media recently are that if property owners don’t comply with the regulations, and get a COC from a registered company:

  • insurance claims may be rejected
  • property owners may be held liable if someone is injured by an electric fence, even if that person is a criminal

Let’s get this into persepctive. If you don’t comply with the National Building Regulations (NBR) and your house falls down, insurance isn’t going to pay. If you don’t have an electrical COC, and your house burns down because of faulty wiring, insurance certainly won’t pay. If you build a staircase that doesn’t comply with the NBR, and someone falls down and breaks a leg, you can be held liable and be forced in a court of law to pay substantial damages.

Electricity is potentially lethal. Would you really consider getting a company that is not qualified to install an electric fence to do the job? … even if they were cheaper? The new registration process is intended to ensure that you and I know who is qualified and who is not.

So What is the Problem?

The main problem is that, as the Beeld article points out, there are very few people who are registered in terms of the new legislation, which should have been enforced from October last year. According to the South African Electric Fence Installers Association (SAEFIA), electric fence installers who are “qualified” may, and have been, granted temporary licenses to issue COCs. But to get a permanent license, it is necessary to pass a test (see next section below). The deadline for registration has been extended to September 2013.

The other problem relates to the COC itself, which must be updated in certain circumstances, including when a property is sold, and where tenants lease a property.

The Amended Regulations

The regulations that apply to electric fences, are the Electrical Machinery Regulations, and they fall under the Occupational Health and Safety Act, 1993. Until 25 March 2011, when the new Electrical Machinery Regulations were published in the Government Gazette, electric fences were governed by the rather sketchy Electrical Machinery Regulations, 1988 – as well as the relevant South African National Standards (SANS), including SANS 60335-2-76.

It should be noted that the regulations do not only deal with electric fencing, but cover all types of electrical machinery, portable electric tools, portable electric lights, overhead power lines, and personal protective equipment for electrical work. You can download the “new” 2011 Electrical Machinery Regulations HERE.

In the new regulations, an electric fence means “an electrified barrier consisting of one or more bare conductors erected against the trespass of persons or animals”. A person registered as an electric fence system installer is required to have “sufficient knowledge of the safety standards applicable to electric fence systems”. Further, proof of “electric fence system installer proficiency” must be given before registration will be approved.

But this doesn’t mean old electric fences need to be replaced. As long as they comply with the old 1988 regulations, they are perfectly legal. And if they comply, there is no reason why they shouldn’t qualify for a COC. This is important, because if a property is sold, a COC is required (see 2 below).

The regulations state that every “user or lessor” (which implicates tenants) of a new electric fence system must have a COC “Provided that such certificate shall be transferable”. Electric fence systems installed prior to 1 October 2012 don’t require a COC unless:

  1. they have been added to or altered,
  2. there is a change of ownership of the premises.

The Law and Electric Fencing: A Pocket, Ready-Reference to the Legal Dos And Don’ts of Electric Fencing In South Africa is available FREE from SAEFIA, or you can download it HERE.

 

A LEGAL PERSPECTIVE

The following story, originally published in De Rebus (The South African Attorneys’ Journal published by the Law Society of South Africa) will be of critical interest to all home owners, property developers, body corporates, estate agents and anyone involved in the security industry.

New certificate requirement for electric fence systems

By Carol McDonald

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.

Penalty

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.

Conclusion

In summary:

• 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.

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

FREE BOOKLET:

JVA – Stafix  have complied a booklet that will help anyone wanting to know about the Electric Fence Legislation. You can download the booklet just click here>>>.

 

  51 Responses to “New Electric Fence Law”

Comments (51)
  1. In the instance of a “derelict” electric fence with no energiser attached is there still a requurement to have the system brought up to dpec or is it treated as a simplecwire fence, albeit in a state of disrepair?

  2. hi, if I am living on Farm and my neighbour installs electric fencing on an existing fence between our properties with the conductors on my side of the property surely this is not legal? what about the risk to my family etc?

  3. When energizer is placed in asecured cabinet must aisollater switch be fitted outside cabinet ?

  4. to whom/what controlling body do I report an illegal fence to?

  5. We are a Home Owners Association with electric fencing around the perimeter of a village comprising of 46 units. Our electric fence was erected before 2012. We are now considering replacement of the electric strands on the existing fence. No alteration to the fence itself. Will we be compliant?

  6. Where do you find an accredited installer to bring an existing electric fencing up to standard? Is there a website that you can verify an installer?

  7. Our government is criminal friendly! Why? because there are a number of government officials that do not belong in government, but in prison.
    I have no electric fence, but I have inside my premises two 75W laser guns 1,2m above floor level at strategic places. They can be activated manually or by motion detector.
    Those guns are normally used to cut thin sheet metal, so the bastard who gets in the line of such a beam will have to go and explain why a tiny portion of his body got deep fried. I understand that such a wound does not heal very readily. He’ll also have to explain what he did in my premises, but I think that would be of no consequence to the law enforcers, I’ll be “die vark in die verhaal”

  8. I live in a complex and my unit is at the back corner of the complex. Three sides of the complex there are 2 lots of electric fencing as the complex backs onto another complex including a home. The fence directly behind my unit backs onto another big complex. We put up fencing between ourselves and this complex and asked them to contribute towards it as we have had incidents and it will also be to their benefit.. They have electric fencing around the rest of their complex.
    I would like to ask how do they get a Electrical Compliance certificate for their Electric Fence for their Complex and how do they even know that our fence is even working as they did not partake in the installation of the system.
    Would they have to approach us for the Certificate to be issued according to the By Laws?
    I would appreciate your comments.

    • I can’t comment on the way your complex operates, but it is your responsibility if you installed the fencing, to get a COC from the electric fence installer. See this COC.

  9. Hi

    What height of the ground should en electric fence be in a complex

  10. If electric fencing is put around a complex which means that the wires are exposed on both sides. Who is responsible to ensure that children and dogs are safe?

    • The wiring has to be a certain height off the ground so that nobody – including dogs – is at risk.

      • A free standing Electric fence may be installed around a complex but the regulation states that there must be a barrier fence of at least 1500mm height with openings not more than 150mm (on both sides if necessary) to prevent any public from coming into contact with that fence. Also warning signs have to be displayed not more than 10m apart. That electrical fence is deemed illegal and as of 2012 electric fences have to have valid C.O.C (Certificate of Compliances) You need to inform the complex governing body to comply, failing which it is your duty to report the matter to the authorities.

      • My neighbour has put up an electric fence on the outside of the wall in the pavement, starting from the ground upwards. Is it legal?

      • I have moved into a complex and the fence is earthed via plastic conduit on the outside of the wall. Shouldn’t it be on the inside to prevent interference?

  11. Not only Sectional Title properties. Owners who have formed a registered company to service their common interests (roads, perimeter fencing, entrance control, anti-poaching and security etc) may be in the same boat.Have you email addresses where I can send my query?

  12. It is not clear which requirements of the Non-lethal Fencing regulations apply in areas of low population density (say below 400 persons per sq km). It is also not clear who is the ‘user’ where a number of freehold properties are enclosed within a common fence – e.g. a group of game farms within a fenced area.

  13. Very interesting article. A lot of people argue the consequences. What would be the consequences if seller or agent issued a non compliant property with a compliance certificate. Where can we view the consequences according to the law?

  14. I live in a complex and part of the property has just had electric fencing, there is no compliance certificate. The director is unaproachabel. There has not been a meeting in this regard. can you email regulations in this instance.
    regards
    Mandy Bearpark

  15. Thanks for the article. Would you please send a copy to the ombudsman for sectional titles once his office opens later this year. Regards

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