By Zerlinda van der Merwe
As a trustee or an owner in a sectional title scheme, have you appointed a contractor to undertake any work on the common property or within your section? If your answer is yes, this article will answer your questions as to whether you are required to ensure compliance with the Occupational Health and Safety Act 85 of 1993, and its Regulations.
When the trustees of a sectional title scheme appoint any contractor to undertake maintenance and / or repairs to the common property of the scheme, the trustees are required to ensure that the contractor assumes the responsibility for risk assessment and compliance with safety standards as required by the Occupational Health and Safety Act.
As the body corporate is not the employer of the contractor/s, it does not directly have to comply with the provisions of the Occupational Health and Safety Act, but rather ensure that the contractor/s comply. In terms of section 3(1)(p) of the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”), the body corporate must ensure compliance with any law relating to the common property or to any improvement of land comprised in the common property.
The trustees can prepare an indemnity form, to be completed by each contractor appointed by the body corporate, indemnifying the body corporate from any death, bodily injury, illness, or other damage. The trustees should also ensure that each contractor appointed by an owner complete the same indemnity form. We suggest that this indemnity form be contained in the body corporate rules and / or the application for renovations and alterations.
In terms of Prescribed Management Rule (“PMR”) 23(6) of Annexure 1 of the Regulations to the STSMA, a body corporate must take out public liability insurance to cover the risk of any liability it may incur to pay compensation in respect of (a) any bodily injury to or death or illness of a person on or in connection with the common property; and (b) any damage to or loss of property that is sustained as a result of an occurrence or happening in connection with the common property, for an amount determined by members in general meeting, but not less than 10 million rand or any such higher amount as may be prescribed by the Minister in any one claim and in total for any one period of insurance.
Should an owner within the scheme appoint the services of a contractor to undertake maintenance and / or repairs to their section, the owner must ensure that the contractor/s appointed complies with the Occupational Health and Safety Act.
Should you require our assistance in drafting an indemnity form or require our legal services in the form of a written legal opinion or consultation, contact us via email at firstname.lastname@example.org or telephonically on 021 686 3950.