certificates of occupancy for building work - Cesa

REDRAFT 1
PURPOSE: To draw members’ attention to the need for a Certificate of Occupancy to be issued by a Local
Authority in respect of a building, and to the risk to a consulting engineer of a claim for loss arising from nonprovision,
or implied or actual non-compliance with such certificate.
KEY WORDS: Certificate of Occupancy, National Building Regulations, SABS 0400 (1990), Engineer’s
Certificate, Electrical Compliance Certificate, Risk, Safety
CERTIFICATES OF OCCUPANCY FOR BUILDING WORK
ADVISORY NOTE: 01/7
(Reviewed May 2004)
A certificate of occupancy is provided for in Section 14 of the National Building Regulations
and Building Standards Act (the Act) (Act 103 of 1977) as amended in 1982, 1984 and 1989.
The Act was promulgated to establish building standards and so provide for the health and
safety of the public in all matters related thereto. In essence this covers the following
aspects carried out under the jurisdiction of the local authority:
• Structural - Engineers Certificate required at plans submission and completion
of the work.
• Electrical - Electrical Compliance Certificate to be issued by a person
registered with and authorised by the Electrical Contractors Board.
• Fire - Well established procedures are in place under the jurisdiction of
the Fire Prevention Officer.
• Plumbing - Work is approved by the local authorities Plumbing Inspector
Section 14 reads as follows:
Certificates of occupancy in respect of buildings
14. (1) A local authority shall within 14 days after the owner of a building, of which the
erection has been completed, or any person having an interest therein, has
requested it in writing to issue a certificate of occupancy in respect of such
building:
(a) issue such certificate of occupancy if it is of the opinion that such building has
been erected in accordance with the provisions of this Act and the conditions
on which approval was granted in terms of section 7, and if certificates issued
in terms of the provision of subsection (2) and where applicable, subsection
(2A), in respect of such building have been submitted to it;
(b) in writing notify such owner or person that it refuses to issue such certificate of
occupancy if it is not so satisfied or if a certificate has not been submitted to it.
(1A)The local authority may, at the request of the owner of the building or any
other person having an interest therein, grant permission in writing to use the
the building before the issue of the certificate of occupancy referred to in
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subsection (1), for such period and on such conditions as may be extended or
altered, as the case may be, by such local authority.
(1) Any person licensed or authorized by a local authority to carry out the installation,
alteration or repair of any electrical wiring connected or of which connection is
desired with the electrical supply or distribution works of such local authority or
any statutory body, shall, at the request of the owner of a building of which the
erection has been completed or of any person having an interest therein, issue a
certificate if he is satisfied that the electrical wiring and other electrical installations
in such building are in accordance with the provisions of all applicable laws.
(2A) A professional engineer or other competent person approved by the local
authority who has been appointed to design or inspect the erection of the
structural system of any building shall, after the completion of such structural
system, submit to the local authority in question a certificate indicating that such
such structural system is in accordance with the application in respect of
which approval was granted in terms of section 7.
(2) Any person who for the purposes of subsection (1):
(a) submits a certificate contemplated in subsection (2) which is substantially
false or incorrect, knowing the same to be false or incorrect;
(b) in a fraudulent manner issues or obtains a certificate contemplated in
subsection (2).
shall be guilty of an offence.
(4)(a) The owner of any building or, any person having an interest therein, erected or
being erected with the approval of a local authority, who occupies or uses such building or
permits the occupation or use of such building:
(i)
(ii)
(iii)
(iv)
unless a certificate of occupancy has been issued in terms of subsection
(1)(a) in respect of such building;
except in so far as it is essential for the erection of such building;
during any period not being the period in respect of which such local authority
has granted permission in writing for the occupation or use of such building or
in contravention of any condition on which such permission has been granted;
or,
otherwise than in such circumstances and on such conditions as may be
prescribed by national building regulation,
shall be guilty of an offence.
The following from Section 24 of the Act
An offence is punishable, on conviction, by a fine not exceeding R4 000 or for a
period of imprisonment not exceeding 12 months.
The following from Regulation A25(6)of the Regulations (Administration) of the Act
The local authority may serve a notice on any person contemplated in section 4(4) of
the Act or sub-Regulation (4) or (5), ordering such person forthwith to stop the
erection of a building concerned or to comply with such approval, as the case may
be; Provided that where any deviation is found to be necessary during the course of
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construction of such building, the local authority may authorize the work to continue
but shall require that an amended plan, drawing or particulars to cover such deviation
is submitted and approved before a certificate of occupancy is issued.
The Act is currently implemented through the publication by the South African Bureau of
Standards Standard 0400 of 1990. The relevant section, in its commentary at clause 3
(Local Authority Powers Under the Act) reads, in this context:
Most of the powers required by a local authority in the process of enforcing the
regulations are contained in Act 103,
these include at sub-clause (f):
(f) section 14, which imposes a duty on the local authority to issue a “certificate of
occupancy” if it is satisfied that the completed building has been erected in
accordance with the regulations;
The person in the local authority to issue the certificate of occupancy would be the Building
Control Officer or his delegated person, such as the relevant local building inspector.
A reading of the Act at clause 14(1) makes it primarily the responsibility of the owner of a
building to apply for a certificate of occupancy. However, a ‘person having an interest
therein’ could be a principal agent such as an architect or engineer. A problem could be the
“innocent” building owner looking to his professionals and insisting they have, at least, a duty
of care to draw to the building owner’s attention the need to apply for the certificate and to
deal with any outcoming matters.
A recent Appeal Court decision in the case S M Goldstein & Co (Pty) Ltd v Cathkin Park
Hotel (Pty) Ltd and Another it was found that a contractor may be held liable for negligence in
a fire loss. This opens the door to claims against contractors in matters of negligence
causing loss and confirms the liability of the professionals.
A copy of the case report is attached as Annexure A.
In order for a certificate of occupancy to be issued, the following are needed as prerequisites:
• For all “structural systems” a certificate from a structural engineer that the structure
conforms to his design. This could become a professional liability issue for the engineer or
principal agent/project manager in not providing such certificate.
• A Certificate of Electrical Compliance. This is a hazy issue of responsibility. It must be
issued by a person accredited by the Electrical Contracting Board (ECB) in terms of the
Occupational Health and Safety Act. In practical terms this is usually the contractor /
subcontractor that installed the electrical system. This is particularly so in the absence of
a consulting engineer and if the electrical contractor is a member of the Electrical
Contractors Association (ECA), and registered by the ECB. It is possible to check on
accreditation by calling the ECA/ECB on (011) 392-0000.
• There is also the issue of the Fire Regulations in Section T of SABS 0400. The usual
procedure is for the local authority to call on its Fire Prevention Officer to inspect the
building for conformity to that officer’s requirements based on the submitted and approved
building plans, together with any further requirements identified during the inspection
having first been complied with. Should a specialist fire prevention professional have been
appointed, then clearly he would be responsible to pursue that. In other cases, the
principal agent/project manager would no doubt attend the inspection, issue any
necessary instructions and inform the building owner of the position as to fire safety.
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• A certificate from the local authority plumbing inspector that the drainage and plumbing
are in conformity with the requirements of the local authority.
It is questionable whether a loss of life, injury or loss of property arising from structural,
electrical or fire causes, in the absence of a certificate of occupancy, would be covered by
the insurance of the building and its contents. Further, a loss might be attempted to be
recovered from the professionals, alleging lack of a duty of care in not drawing this to the
building owner’s attention.
Another aspect is the possibility of a dispute between the building owner and local authority
as to the withholding of a certificate of occupancy being in conflict with a right in terms of our
National Constitution.
A local authority in South Africa may have no liability in the context of building plans leading
to construction and subsequent loss to others. However, it could be argued that the local
authority, its officials being aware of a danger, was liable for loss caused by failing to act on
that knowledge.
Another matter that could cause problems in obtaining a certificate of occupancy, are not
having provided acceptable means of access for disabled persons in the completed building,
where such is required by law.
CONCLUSIONS
• A Certificate of Occupancy is necessary for the owner to be certain that his building
complies with the requirements set out above.
• Whilst it is the responsibility of the building owner to apply for and obtain the
Certificate, there is risk to the professionals, contractor and electrical installation
firm of a claim for loss arising from non-provision and the implied or actual noncompliance.
ACTION RECOMMENDED
• Carry out an audit of previous projects now to ensure compliance and in regard to
new projects, endeavour to contract out of responsibility for obtaining the
certificate and draw your clients’ attention to this aspect in writing.
• Ensure that the necessary documentation such as supporting certificates and
records of inspections are accessible in the event of a possible future claim.
The contents herein are published for general information only and are not intended as specific professional advice,
legal or otherwise. The merits of every situation should be considered separately and specific professional advice in
relation thereto should be sought.
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ANNEXURE A
REPORTABLE
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No. 513/98
In the matter between:
S M GOLDSTEIN & CO (PTY) LIMITED
Appellant
and
CATHKIN PARK HOTEL (PTY) LTD 1 st Respondent
DRAKENSBERG SUN HOTEL (PTY) LTD 2nd Respondent
Coram:
SMALBERGER, HARMS AND PLEWMAN JJA
Heard: 29 AUGUST 2000
Delivered: 8 SEPTEMBER 2000
Subject: Delictual liability of building contractor to owner and third
parties
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JUDGMENT
HARMS JA
HARMS JA:
[1] The appellant, a building contractor of note, was responsible for the building of an
hotel known as the Drakensberg Sun. The land and building owner is the first respondent
and the lessee and operator of the hotel the second respondent. During the winter of 1988 a
fire which had its source in the fireplace in the lobby of the hotel destroyed part of the
complex. The respondents, claiming in delict and alleging negligence, joined the architect,
the interior decorator, the project manager and the appellant in an action for damages. The
case against the other defendants has either been settled or withdrawn and in the court
below Malan J held the appellant liable to compensate the respondents for any damages
suffered as a result of the fire. Since the question relating to quantum was separated from
the liability issue, the instant appeal (which is before us with the leave of the Chief Justice) is
against that finding only.
[2] The Drakensberg tends to be rather cold in winter and a fireplace in the lobby must
have been an important design feature. One can assume that between them the architect
and the interior decorator decided that the ambience of the area and the hotel called for a
rustic look. In the event, the builder was issued with drawings and instructions to build a
fireplace using a Jetmaster firebox suitable for an open fire. A railway sleeper, impregnated
with bitumen, had to rest on top of the firebox to form a mantlepiece. Above that an
ornamental structure consisting of a sheet of chipboard with decorative but real log ends or
butts had to be fixed to the masonry which formed the chimney.
[3] As designed, the fireplace did not comply with the installation instructions issued by
Jetmaster with every unit sold. Of importance in this case is the following instruction:
“IMPORTANT: Combustible materials should not be fitted within . . . 450 mm above the
firebox unless adequate provision is made to insulate such materials.”
In a number of respects the rest of the design did also not comply with the National Building
Regulations. For instance, although the roof had to be built with wooden shingles, the
necessary and prescribed fire prevention measures did not form part of the design. The
appellant, sometimes using nominated subcontractors, built the hotel in general accordance
with the architect's plans but in constructing the fireplace failed to adhere to Jetmaster's
quoted instructions or the National Building Regulations.
[4] The fireplace was in constant use. The railway sleeper rested on the hottest part of
the firebox and in time the heat caused the sleeper to ignite. From there the fire spread into
the roof void via a false flue that had been created between the sheet of chipboard and the
masonry. The rest of the causal chain need not be related, nor the extent of the damage.
[5] The respondents relied upon and the court below dealt with a large number of
grounds of negligence. In the light of the view I take of the matter, it is not necessary to
traverse the whole field and I intend to limit the discussion. It is common cause that the
appellant -
1. constructed the fireplace in a manner so as to result in the railway
sleeper being mounted directly above and on the lip of the Jetmaster
unit;
2. failed to have regard to the installation instructions supplied by
Jetmaster;
3. constructed the fireplace in a manner so as to result in there being no
provision for insulation between the firebox and the sleeper and the
other combustible material (the decorative feature).
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These facts, without more, establish at least a prima facie case of negligence. In addition,
although initially in dispute, it became common cause at least between the witnesses that the
design and construction of the fireplace would have been manifestly unsafe to a builder. The
initial dispute concerned the question whether the fireplace was with hindsight or with
foresight manifestly unsafe. Apart from the fact that it is difficult to conceptualise how
something can be manifestly unsafe with hindsight, the witness who had added the caveat
conceded the point during cross-examination. Malan J also made such a finding and not
only has it not been shown that he was wrong, I am of the view that he was correct. In the
light of the evidence it avails the appellant not that the architect or others on site had failed to
notice the defective and inherently dangerous design and construction. This simply
establishes that others may also have been negligent or in dereliction of their duties. That
puts an end to the first leg of the inquiry as formulated in Kruger v Coetzee 1966 (2) SA 428
(A) 430E-F namely whether a diligens paterfamilias in the position of the defendant would
have foreseen the reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss.
[6] The next step in the inquiry is to establish whether the reasonable builder would have
taken reasonable steps to guard against such occurrence. The answer seems to me to be
clear. Any reasonable builder would refrain from building something which is manifestly
unsafe. He would follow the manufacturer's installation instructions, especially insofar as
they related to safety matters. It would have been fairly simple to have followed the
manufacturer's instructions or to have placed some or other effective insulation between the
combustibles and the firebox. Since the appellant failed to take any of these steps, it also
determines the third leg of the negligence inquiry.
[7] Having found negligence, it is convenient to deal with wrongfulness (the breach of a
legal duty) at this juncture. In this regard it is as well to remember that conduct which is
lawful towards one person may be unlawful towards another. The test involves a value
judgment by applying in the light of all the circumstances the general criterion of
reasonableness. The criterion is based upon considerations of morality and policy and the
court's perception of the legal convictions of the community. That harm is foreseeable is a
relevant consideration. (See Government of the Republic of South Africa v Basdeo and
Another 1996 (1) SA 355 (A) 367-369.) In spite of counsel's protestations, it has to be
accepted that in general a builder does have a legal duty to both the building owner and to
third parties to refrain from building something which is manifestly unsafe. Even builders
should not play with fire or fireplaces. The essence of counsel's argument was that the
appellant had a legal duty in terms of the contract to build in accordance with the design of
the architect and that having so built it could not be held liable in delict. I am prepared to
accept for purposes of argument that a building owner cannot hold a builder liable in delict if
the builder were contractually required to construct an unsafe structure, although it is
improbable that any building contract would contain a term (tacit or otherwise) requiring of a
builder to build something which is manifestly unsafe or defective.
[8] The first problem with the submission is that it is no answer to the hotel operator's
claim. The second problem is that it fails to have regard to the builder's obligations in terms
of the building contract in question. The contract consists of a set of standard conditions of
contract and a “bill of quantities” without quantities but containing additional and qualifying
terms. On the one hand the contract obliges the builder to carry out and complete the works
in accordance with the contract and the directions of the architect, and to his reasonable
satisfaction. He must also comply with the architect's instructions. If he wishes to deviate,
he has to give the architect due notice. On the other hand, the contract requires the
standard of workmanship to be of the best and records that the objective of the builder's
appointment is his expert knowledge and he is made responsible for all aspects of the
construction of the hotel. In particular it states that all commodities are to be fixed with care
and in strict accordance with the manufacturer's instructions and recommendations. Should
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these conflict with other specified requirements the architect must be notified forthwith and if
anything is unclear, the necessary clarification must be obtained from the architect - in either
instance a variation order should be sought.
[9] These terms indicate that the appellant's approach to its legal duty is based upon an
oversimplification. The contract did not oblige the builder to build irrespective of safety
concerns. Simple mechanisms were in place to deal with a case where the architect's
instructions conflict with safety matters and manufacturers' instructions. Realising his
difficulty, counsel sought refuge behind the fact that the failure to advise the architect was not
a ground of negligence relied upon in the particulars of claim. This reasoning is flawed.
Although the failure to notify or involve the owner or architect is not a ground of negligence,
the issue really arises in the context of the existence of a legal duty. Because of the nature
of the risk and the degree of foreseeability a prima facie case of the existence of a legal duty
was established. The appellant wishes to extricate itself by relying on the building contract.
To do so it had to a duty to adduce evidence in order to upset the prima facie case. Proof of
the contract alone did nothing to assist it. As far as the evidence went, it established that the
appellant did not act in terms of the contract.
[10] Another factor relied upon by the appellant affecting the existence and scope of its
legal duty was the employment by the building owner of an architect, a safety consultant and
others to design, advise and supervise the works, and the use of nominated subcontractors.
These facts do not absolve the appellant. They merely indicate that more than one party had
a legal duty towards the respondents in relation to the safety of the fireplace.
[11] In my judgment the appellant is on this simple basis liable and without necessarily
agreeing with all the other findings and rulings of law made by the court below, it is
unnecessary to consider them. The appellant, in anticipation of such a finding, relied upon
the contributory negligence of the first respondent, alleging its negligence (i) in approving the
design and the choice of material for the fireplace and roof structure and (ii) in failing to
assure that they would not constitute a fire hazard or cause a fire. There is no merit in the
partial defense. The evidence does not establish that the first respondent approved the
design details. A number of independent experts were employed to design, construct and
manage the construction of a hotel. It was not incumbent upon the first respondent in those
circumstances to check independently whether everyone was doing his work properly and it
was entitled to rely on those who it paid to do the work.
[12] Finally, the appellant also relied as against the first respondent upon a provision in
the General Conditions of Contract which provides in part that “. . . the Contractor shall in no
case be liable for any loss or damage to the said Works, material or goods caused by an
excepted peril”. One of the excepted perils is “the design of the Works . . . by the . . .
Employer's servants or agents.” Thus, the question is whether the damage was caused by
the design of the architect. Having found that the damage was caused, at least in part, by
the negligence of the appellant who in any event did not comply with its contractual duties,
the clause appears to me to be inapplicable. Its purpose is to protect a builder who complies
fully with his contractual obligations and to place the design responsibility where it should be,
namely on the shoulders of the architect. Its object is not to create an exemption for a
builder who, having acted negligently, can point to the fact that the design was a contributory
cause of the damage.
[13] Judgments of this Court often conclude with a lament about the state of the record. If
a properly prepared record, trimmed of all unnecessary material and duly cross-referenced,
crosses one's desk one notices it immediately. The record in the instant case is one of the
few that justify a commendation.
[14] The appeal is dismissed with costs, including the costs of two counsel.
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_________________
L T C HARMS
JUDGE OF APPEAL
AGREE:
SMALBERGER JA
PLEWMAN JA
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