PROVIDING OF ELECTRIC FENCE COMPLIANCE CERTIFICATES
FOR SECTIONAL TITLE TRANSFERS

The Regulations promulgated in terms of the Occupational Health & Safety Act ("the Act") which became operative from 1 October 2012 made it compulsory that an Electric Fence System Certificate ("EFSC") is issued in terms of an electric fence system. Although the Act and Regulations do not distinguish between free-standing properties, sectional title units or full title erven in security estates, this question should be assessed on the facts applicable. A sectional title unit owner is owner of his/her section and owner of an undivided share in the common property. He/she cannot sell his/her section apart from his undivided share in the common property.  All the members of a Body Corporate are joint owners of the common property and as such are users of the electric fence system.  The Body Corporate is responsible for the management, control and administration of common property and its functions are exercised through the trustees.  The Body Corporate is therefore, on behalf of its members, liable to comply with the regulations and to obtain an EFSC.  It is therefore opined that where an electric fence system is situated on common property, that there would be an obligation on a unit owner, as seller, to comply with the provisions of the Act and Regulations, and to furnish an EFSC to the purchaser, unless it was agreed that the purchaser will be liable to comply.  A Body Corporate can be held liable in delict for damages caused by death or injury that may be caused as a result of a defective or non-compliant electric fence system, and it is therefore advisable that the trustees comply with the provisions of the Act and Regulations, and obtain an EFSC.  Whenever there is a change of ownership of a unit in a scheme, a copy of the EFSC should be provided to the member/seller.

The liability of a seller in terms of Section 22 of the Act to furnish an EFSC upon the sale of the property can be shifted from the seller to the purchaser by agreement.  It would then be the responsibility of the purchaser to obtain an EFSC.

The validity of an EFSC has not been prescribed, and thus should be agreed upon between the seller and new user.

Another burning question is whether a user can be deemed a person who has not installed the Electric Fence.  For example, where your stand is the subject of a Fence installed by the surrounding neighbours.  Presently there is uncertainty, but it would be the opinion that if the fence was not installed by the seller, no EFSC is required. However, this opinion should be approached with caution as no case law hereon exists at present. A new user might have the right to insist on the EFSC