05 Jul 2013
Because the property industry has been slow to take notice of the Electric Fence Regulations that became effective on 1 October 2012, unsuspecting purchasers should take steps to avoid being lumbered with the cost of having to pay for an Electric Fence Certificate after registration of transfer of property into their names.
As most of the pre-printed Offer to Purchase/Sale Agreements still omit the requirement of an “Electric Fence System Certificate of Compliance” (hereinafter - a Fence Certificate), most purchasers could find themselves in for a rude shock : in more ways than one.
This article deals with the situation where sale agreements make no mention of any Fence Certificate and highlights the consequences of there being no agreement between seller and purchaser concerning electric fences that were installed before 1 October 2012. Note, we are not referring to fences that were installed after 1 October 2012. This article applies to the greater majority of fences that happen to have been installed before 1 October 2012.
The key legal elements of the Electrical Machinery Regulations, published in Government Gazette
No 34154 dated 25 March 2011 are as follows.
Accordingly, we may conclude that only a registration of transfer of the property (being the required change of ownership), is the trigger for the user to be in possession of a Fence Certificate. Who is the user on or after transfer? A user is defined in the legislation as being the person in control of the premises. Almost invariably upon or after registration of transfer, the purchaser will be the person in control and of course is the person most likely to be the user. Therefore the purchaser suddenly becomes liable to obtain the Fence Certificate.
This situation is similar to purchasing a motor vehicle without a roadworthy certificate. It is perfectly lawful to purchase a vehicle without a roadworthy certificate. The law specifically provides that if the user of the vehicle wishes to drive it on a public road, then the user (and not the seller) must obtain a roadworthy certificate.
In essence then, the seller will never have to provide a Fence Certificate, if the fence was in existence before 1 October 2012.
So how can this be - one may ask, as we are all familiar with the requirement that the transferor/owner produce an Electrical Certificate of Compliance (ECC) before transfer? The ECC Regulations are entirely separate from the Fence Certificate regulations and neither covers nor includes the other. In simple terms, the ECC Regulations are the opposite of the more recent Fence Regulations, because ECC Regulation 7 actually stipulates that the “user or lessor may not allow a change of ownership, if the certificate of compliance is older than two years”.
The first shock then is that the purchaser has no basis to call on the seller to provide a Fence Certificate; as the seller has no obligation to produce one. Don’t forget we are only referring to old fences.
The second shock is when the purchaser is subsequently told by the contractor that the fence is defective and must be upgraded at significant cost to the purchaser: only then the purchaser realises that he has no right of recourse against the seller.
We have recently experienced the issue of two freestanding electric fences that are electrified down to the ground without any protective barriers in front of them. The problem was recently highlighted in The Sandton Chronicle when a toddler sustained a severe shock and serious skin burns when she unwittingly touched the fence at knee height, because there was no protective barrier in front of the electrified fence.
Both sellers of fences, electrified down to the ground without any protective barriers, responded by saying that they had no duty to upgrade the fences, because prior to transfer there was no legal requirement on them to produce any Fence Certificate.
Of course the purchasers expected the fences to be upgraded with protective barriers so that they could obtain the necessary Fence Certificate; now that they were the new users in control of the property.
Interestingly, both sellers thought about disconnecting the lower half of the fence rendering it safe from electric shocks, saying that they had no further duty to upgrade the fence because the contract did not provide that the seller must upgrade nor improve nor pay for any upgrades to the fence.
The “shocked” purchasers complained that the now disconnected fences were no longer a deterrent to intruders and the property that they purchased is no longer as safe as it originally was! Both disputes have not yet been resolved at the time this article was written.
In conclusion, prospective purchasers should be aware that they cannot expect that a Fence Certificate will be automatically provided; if they sign an offer to purchase that makes no mention of any electric fence. They should analyse the draft agreement and insert a clause that the seller arranges and pays for a Fence Certificate before lodgement.
Sellers, on the other hand, should realise, that in respect of an old fence, they have no obligation to obtain and provide any Fence Certificate, even after transfer. It is their right not to provide a Fence Certificate: so imply the Regulations that are published in the Government Gazette.
We can foresee detailed and complicated negotiations about who will pay for; not only the Fence Certificate, but also who will pay for the fence to be upgraded; as in most cases sellers will say they have no pre-existing obligation to upgrade the fence, just because they have now sold the property – remember vootstoets is always in the background and the property is always sold “as is“.
So purchasers should avoid a double electric fence shock by negotiating with the seller before the offer to purchaser is signed.
Unless the property industry redrafts all their pre-printed offers to purchase documents and inserts clauses about who should pay and provide Fence Certificates and unless the Regulations are updated to fall in line with the ECC regulations, the fairest solution is for buyers and sellers to each contribute half and half to the total cost of obtaining the Fence Certificate, which will be required after transfer. - DH Sampson
Denoon SampsonDenoon Sampson practised insurance litigation at Deneys Reitz now known as Norton Rose and conveyancing for E Oppenheimer and Sons, Anglo American, SA Permanent Building Society and many others at Weber Wentzel and EFK Tucker. He was a founder member of Sampson Okes Higgins, which became Denoon Sampson Ndlovu and is a consultant to The Standard Bank on its Electronic Payments and Guarantee process. His firm is currently ranked 2nd top performing conveyancer by First National Bank Limited.
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