CERTIFICATES OF COMPLIANCE

It has always been a bone of contention whether there is a duty to obtain a Certificate of Compliance (C.o.C.), emanating from section 22 of the Occupational Health and Safety Act, 85 of 1993, and the Regulations framed thereunder.
 
To this end a legal opinion by the Gauteng Law Council was sought from Judge D.J.R. le Roux.  The learned judge summarized his findings as follows:
 

• No statutory obligation to obtain a certificate of compliance on the sale of a dwelling-house exists as the Occupational Health and Safety Act of 1993 was not intended to apply outside the industrial or worker sphere.
• It follows that neither seller nor estate agents have to obtain C.o.C.'s when marketing or selling dwelling-houses.
• As far as Conveyancers are concerned who act on a mandate by a seller to transfer the property, it is my view that they cannot be held liable for any defect in a C.o.C.  It is the function of a Conveyancer to collect and present all necessary documents (for transfer) to the Registrar (sic) and to ensure that no contractual obstacles to transfer exists.  Thus, even if a C.o.C. had been required, the limit of the Conveyancers duties would have been to obtain the completed certificate and to make sure that it was signed by a properly accredited person.  He has no obligation in respect of the contents thereof.  The proposed certificate of fitness would also fall into this category - the Conveyancer must see to it that the seller provides the certificate and that it is signed by an accredited electrician, but he has no liability in respect of its contents.
• August 1988 refers to an "employer" or "user" of machinery and places the obligation on such a person to designate a competent person in respect of every premise on which machinery is used to supervise the use thereof.  It would therefore seem that the word "user" has a meaning in the factory or workshop but fails to become a meaningful term in the language of contract.  ^thThe language used in the Act and regulations is wholly inappropriate to the sale of a house.  The use of the word "user" or "lessor" for the concept of a seller confuses the issue and causes ambiguity and doubt.  It is incomprehensible from a legal point of view but probably fits in with the transfer of an industrial machine.  The General Machinery Regulations of 1988 contained in GN 1521 of 5
• It is completely artificial to speak about the sale of a "wiring installation" in a house as the sale of "machinery".  It is only due to a distorted view of the extremely wide wording of the definition of "machinery", and a quantum leap of the imagination, that a dwelling-house can be brought within its ambit. 
• If a certificate of fitness of the wiring circuit in a house is required (eg. where it is sold voetstoots and the purchaser wants the assurance that the wiring installation is safe) it becomes a contractual as opposed to a statutory obligation, and concerns only the parties to the contract.  No criminal liability could attach to non-compliance - only civil remedies.
• When no contractual terms requiring a wiring certificate is inserted, the common law obtains and an action will lie within 3 years of the sale for a reduction in the price or even a rescission of the contract under the Aedilitian actions.  

 
The clause to be inserted in a deed of sale should read as follows:
 
Certificate of Compliance
 

1. The Seller is required at his own cost to provide the buyer with a written certificate, signed by a competent electrician (who is an "accredited person" within the meaning of the Electrical Installation Regulations, 1992, framed under Act no. 6 of 1983, as extended by Act no. 85 of 1993) in respect of the electrical wiring of the premises in which he certifies that he has inspected the wiring installation from the point of control to the point of consumption and found it reasonably safe, and warrants that it complies with the SABS Code of Practise for the Wiring of Premises no. 0142 or its successors.
2. In the event of failure to provide the aforesaid certificate within 14 days after signature of this agreement, the buyer may appoint an accredited electrician to provide the said certificate and he may thereafter deduct the cost of acquiring such certificate from the purchase price of the property. 
3. Any defect found in the wiring of the premises will be repaired by the Seller (failing which by the buyer for the account of the seller) prior to transfer and such costs incurred by the buyer may be deducted from the purchase price.

 
Finally, it should also be made abundantly clear that the certificate of compliance does not guarantee that all electrical appliances are in good and proper working order, but merely that the installation is reasonably safe.

 
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