With the sale of a residential property, property owners are obliged to provide Electric System Compliance Certificates (ECC) prior to date of registration. The ECC are valid for a period of 2 years and is a statutory requirement, meaning that it cannot be waived by mutual consent.
As from the 1st of October 2012 all registered property owners are now obliged to provide an Electric Fence Compliance Certificate if the fence was erected from December 2012.
These regulations do not apply to electric fence systems which were erected prior to 1 October 2012 except when any additions, energizer changes or alterations were effected to the existing electric fencing systems after to that date.
When there is a change of ownership on the property and the electric fence was erected prior to 1 October 2012, sellers are merely required to get a compliance certificate which states that the electric fence is in good working order and cannot be easily touched by accident and complied with the legislation at the time the electric fence was installed.
Electric fence owners can ensure that the fence is in good working order by conducting general maintenance on such electric fences. The maintenance generally consists of clearing the fence of all vegetation and debris that could cause high-voltage pulses and that could lower the effectiveness of the fence, tightening wires that are visibly slackened and fixing all broken parts of the fence, they say.
Electric fences erected after 1 October 2012 have to comply with the Electrical Security Installations Regulations (SANS 10222-3:2012) which provide that, electrical fences should have joints which are taped with water proofing tapes, dedicated plugs, 3 earth spikes near the energizer with the lightning protection and thereafter 1 earth spike every 30 metres and should have sign boards every 10 metres as well as on every gate.
Electric Fence Certificates can only be issued by registered persons, who are approved by the chief inspector. The chief inspector issues all registered persons with a certificate of registration which certificate will be entered onto their database.
Sellers should bear in mind that an Electrical Fence System Compliance Certificate is distinct from an Electrical Compliance Certificate; it is therefore an added statutory requirement if the property has an electric fencing system, and cannot be waived by agreement. As with an Electrical Compliance Certificate, The Electrical Fence System Compliance Certificate is valid for a period of TWO years after date of issue and if valid it is transferrable to the new registered owner.
Responsibility for obtaining the certificate
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?
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.
Wietz Viljoen, WVA INC.
This article is for general information purposes and is aimed at advising the public. It should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.