Electrical Certificate

There is a perception in the real estate industry that the furnishing an Electrical Compliance Certificate is not essential when transferring property and that therefore the clause in the sale agreement requiring the Seller to supply the Purchaser with an electrical compliance certificate, is not necessary.  This is only half true.

The Occupational Health and Safety Act (‘the OHSA’) aims to provide for the health and safety of persons at work and as such is not an Act that one would expect to find in a conveyancing and property law context.  However, the Act determines that responsibility for and maintenance of any electrical installation on a property lies with the owner or lessor thereof; and it also lays down requirements that must be complied with when ownership of any electrical installations (whether installed on residential, commercial or any other property) is passed.  Therefore it is relevant to all home owners, lessors and role players in the property market.

The aim of the regulations promulgated in terms of this Act is not to ensure that each and every aspect of the electrical installation is in 100% working order, but that the installation is safe.  A plug outlet may well not be in working order but nevertheless safe and an electrical clearance certificate can be issued in respect thereof.

New regulations came into effect on 01 May 2009.  The conveyancing relevant regulations are discussed in the table below where the old wording and new wording is compared.  Note that the regulations refer to ‘users’ and ‘lessors’.  A ‘user’ is defined in section 1 of the Act and includes the person who uses the installation ‘for his own benefit or who has the right of control over the use ...’ thereof.  From a conveyancing and property law perspective the term ‘users’ appears to include all owners of properties on which there are electrical installations, although the definition of ‘user’ is somewhat short of clearly stating this.

NEW REGULATIONS COMMENT
Responsibility for electrical installations 2. (1) Subject to subregulation (3), the user or lessor of an electrical installation, as the case may be, shall be responsible for the safety, safe use and maintenance of the electrical installation he or she uses or leases.

(2) The user or lessor of an electrical installation, as the case may be, shall be responsible for the safety of the conductors on his or her premises connecting the electrical installation to the point of supply in the case where the point of supply is not the point of control.

(3) …. Subregulation 2(3) is new. It makes provision for the possibility that a user (owner) or lessor may enter into a written agreement with a lessee in terms of which the lessee accepts responsibility for the safety, safe sue and maintenance of the electrical installation.
Certificate of compliance 7. (1) Subject to the provisions of subregulation (3), every user or lessor of an electrical installation, as the case may be, shall have a valid certificate of compliance for that installation in the form of Annexure 1, which shall be accompanied by a test report in the format approved by the chief inspector, in respect of every such electrical installation.

(2) Subject to the provisions of subregulation (3), every user or lessor of an electrical installation, as the case may be, shall on request produce the certificate of compliance for that electrical installation to an inspector, a supplier or, subject to regulation 4(1), an approved inspection authority for electrical installations.

(3) Subregulation (1) shall not apply to an electrical installation that existed prior to 23 October 1992, and where there was no change of ownership after 1 March 1994: Provided that, if any addition or alteration is effected to such an electrical installation, the user or lessor of the electrical installation, as the case may be, shall obtain a certificate of compliance for the whole electrical installation, whereafter the provisions of subregulation (1) shall be applicable to such electrical installation.

(4) 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 electrical installation shall obtain a certificate of compliance for at least the addition or alteration.

(5) Subject to the provisions of section 10(4) of the Act, the user or lessor may not allow a change of ownership if the certificate of compliance is older than two years.

(6) …
(7) … The following is new here:
The test report must accompany the electrical certificate (7(1));
Note that a clearance certificate is NOT required i.r.o. an installation that existed prior to 23 October 1992, and where there was no change of ownership after 1 March 1994; however, if there was any addition or change to such installation, a clearance certificate is required (7(3)):

Substitution of lost, damaged or destroyed certificate 13. (1) If any registration certificate issued in terms of these regulations to an electrical contractor or a registered person is lost, damaged or destroyed, the person to whom the certificate was issued may apply to the chief inspector for a duplicate certificate in the form of Annexure 6, together with the relevant registration fee prescribed by regulation 14.

(2) After proof that a certificate referred to in subregulation (1) has been lost, damaged or destroyed has been submitted to the satisfaction of the chief inspector, the chief inspector shall issue a duplicate thereof on which the word “duplicate” shall appear   10 (1) (a) If a certificate of registration issued in terms of regulation 9 (2) or referred to in regulation 13 (2) has been lost, damaged or destroyed, the accredited person to whom the certificate was issued may apply to the chief inspector for a duplicate certificate.

(b) The application shall be accompanied by the fees determined in terms of regulation 11. If an owner lost his certificate and requires a new one, he can apply in terms of this regulation. The costs would be R 120

Whether a clause in respect of the Electrical Compliance Certificate should be included in the Deed of Sale is a matter of much debate.  There is no statute that compels its inclusion and neither is it an essential terms of the agreement of sale.  It is therefore difficult to argue that it is compulsory to include such a clause in the agreement.  Be that as it may, it is certainly necessary to determine what the Seller and Purchaser agree to in respect of the certificate so as to ensure that the regulations are complied with, especially the new regulation 7(1), as discussed above.