||BIANCA DU TOIT|
In a property transaction the seller is often required to furnish the purchaser with a valid Electrical Compliance Certificate (“Certificate”) before transfer. The purpose is to provide a warranty to the purchaser that the electrical wiring and installations on the property are in order. How long does the Certificate remain valid; and does it lapse when the property is transferred?
The Electrical Installation Regulations (“the Regulations”), promulgated under section 43 of the Occupational Health and Safety Act 85 of 1993, obliges every user or lessor of an electrical installation to have a valid certificate of compliance under regulation 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.”
Under section 1 of the Regulations a “certificate of compliance” means:
“(a) a certificate with a unique number obtainable from the chief inspector, or a person appointed by the chief inspector, in the form of Annexure 1, and issued by a registered person in respect of an electrical installation or part of an electrical installation; or
(b) a certificate of compliance issued under the Electrical Installation Regulations, 1992”
VALIDITY OF THE CERTIFICATE:
Regulation 7(4) requires the following:
“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”.
This means that a new Certificate is required for an addition or alteration to the electrical installation. The use of the phrase ‘at least’ implies that the previously issued Certificate remains valid for those parts of the installation that existed before the addition or alteration.
Regulation 7(7) states the following:
“If an inspector, an approved inspection authority for electrical installations or supplier has carried out an inspection or test and has detected any fault or defect in any electrical installation, that inspector, approved inspection authority for electrical installations or supplier may require the user or lessor of that electrical installation to obtain a new certificate of compliance. . .”.
If a fault or defect is detected in the installation, the inspection authority “may” require the owner to obtain a new certificate. The word “may” instead of “must” implies that in circumstances where the installation is found to be defective, the issuing of a new certificate may not be required. The Regulation does not state that an existing Certificate becomes invalid in cases of a fault or defect. The implication is that if a new certificate is not required, the previously issued Certificate remains valid.
WHAT CAN WE GATHER FROM THE CONTENT OF THE CERTIFICATE OF COMPLIANCE REGARDING ITS VALIDITY?
The form of the Certificate is prescribed in Annexure 1 of the Regulations. Non-compliance with Annexure 1 will render the Certificate invalid in the following cases:
The Regulations do not provide for the expiry of a Certificate, with the implication that, if there is no addition or alteration to the installation and no fault or defect has been detected, the Certificate remains valid. The mere passing of time does not render the Certificate invalid.
ARE THERE ANY EXCEPTIONS TO THIS?
CHANGE OF OWNERSHIP
Regulation 7(5) states the following:
“Subject to the provisions of Regulation 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”.
The implication of this regulation is that a change of ownership is not allowed if the current Certificate is older than two years. A property owner does not have to renew the Certificate every two years, but for the transfer of ownership of the property a new Certificate is required if, at the date of registration of transfer the current Certificate is more than two years old.
HOW DOES THIS APPLY TO LEASE AGREEMENTS?
Regulation 2(1) states the following:
“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”.
Subregulation 2(3) reads:
“Where there is a written undertaking between a user or lessor and a lessee whereby the responsibility for an electrical installation has been transferred to the lessee, the lessee shall be responsible for that installation as if he or she were the user or lessor”
It is clear from this wording that, in the absence of an agreement to the contrary, the responsibility to obtain a valid Certificate is on the lessor.
A Certificate remains valid from its date of issue and does not lapse by the mere passing of time. However, if there has been an addition or alteration to the installation is, or a fault or defect has been detected in the installation, a new Certificate must be obtained in the circumstances as set out above. In addition to this, change of ownership is not allowed if the current Certificate is older than two years, regardless of whether there has been any addition or alteration or whether a fault or defect has been detected.