Legislation paralysis

• • Building regulations are managed under the Department of Trade, Industry and Competition (DTIC), while water supply is managed under the Water Services Act by the Department of Water and Sanitation (DWS)
  • There is an overlap between the two. Water supply ends up inside the house, but is not governed under building regulations
  • Long-ranging discussions with the National Regulator for Compulsory Specifications (NRCS), and the Building Control Officers (BCO’s) have concerned the fact that its staff are only responsible for drainage connections that dispose of waste – that is, toilets and waste going into the sewer system

One example of how government departments in South Africa work in silos is the Building and Water departments. Building regulations are managed under the Department of Trade, Industry and Competition (DTIC), while water supply is managed under the Water Services Act by the Department of Water and Sanitation (DWS). The latter imposes a duty to make sure water is supplied to all communities.

However, there is an overlap between the two. Water supply ends up inside the house, but is not governed under building regulations. A lot of water is lost inside houses, and water loss is the responsibility of the municipality. Within the building regulations, only water supply up to the water meter and sewerage is addressed – not the way water is handled inside buildings. The only reference to this in the NBR&BS is that only a ‘qualified plumber’ may do plumbing work – and that applies to all plumbing across the board, not just water supply and sewerage.

Long-ranging discussions with the National Regulator for Compulsory Specifications (NRCS), and the Building Control Officers (BCO’s) have concerned the fact that its staff are only responsible for drainage connections that dispose of waste – that is, toilets and waste going into the sewer system.

Regulations state: “The BCO cannot enforce anything not allowed for in the Act, Regulations and the SANS 10400 series. Regulation A13 describes materials as: material used in the erection of a building shall be suitable for the purpose for which it is to be used.” Therefore, the SABS mark is not prescribed within the National Building Regulations & Building Standards (NBR&BS) Act.

Due to there being no requirement in the NBR&BS Act, the regulation of brassware, piping in buildings, geysers, solar and other such plumbing applications does not form part of the BCO/Inspectors jurisdiction nor his role.

PIRB and IOPSA have long urged that this situation be remedied by the introduction of water supply in buildings into the NBR&BS. This is currently under review, but with political party elections looming later this year, many issues have already been put on the backburner until next year – and therefore the longer term issue of embedding the requirement for a Certificate of Compliance (COC) in legislation remains a challenge for all parties involved, explains IOPSA executive director Brendan Reynolds.

In an ANC elective year, as is 2022, the political noise of the ins and outs of ANC jockeying for positions are loud and interesting, but has devastating consequences. Until the party votes are counted and the new leadership announced, few in the ANC — wherever they find themselves, even in government — would risk making moves as this may backfire in the factional sands.

An unusually slow pace of decision-making and policy implementation has been slowed even further by the ANC’s emphasis on collective responsibility. It’s a one-for-all and all-for-one approach that effectively shields governance accountability and transparency. Most ANC policies — jobs, housing, fighting crime and corruption, infrastructure spending and the issue of COCs and the hundred and one other topics IOPSA and the PIRB discusses with government — have remained the same across several elections regardless of their impact on health and safety, not to mention poverty, inequality and joblessness.

“We’re dealing with government on many different issues: training, upliftment, COCs, the safety of water in buildings. Nothing can take less than three years, and water in building legislation has already absorbed its three-year spell,” says Reynolds.

“We regularly meet with one municipality or another, spelling out the programme that we think would assist them in rectifying their water and sanitation issues. These are services in serious crisis, and we bring our ideas and it would not cost them one cent. However, the response we get is 50 hoops to jump through. Nobody’s aiming to make money from the scheme we propose – we are volunteering everything,” says Reynolds.

“We first started discussions with the Department of Labour in October 2019. Then we were approached by the Department of Trade, Industry and Competition (DTIC) just after the first lockdown opened up a bit in mid-2020. We’ve been working solidly on various legislative issues, and particularly regularising the requirement for a COC – which are not difficult things to finalise – and although all the work has been done, still nothing has happened for three years now.

“Regarding our discussions with the Department of Labour is that the advisory committee has met and they have considered the proposal that industry has put to them. In this context, ‘industry’ means a number of organisations including a trade union that have come together to put a proposal to the Department of Labour, which is now at a point where a decision must be made. What that decision is going to be we don’t know. Obviously we really hopeful that the proposal puts in place some sort of COC mechanism, whether it follows the model of the gas, fire or electrical sectors or even some model we don’t yet know of – but it’s at the point where a decision will be made imminently.

“Municipalities are given the responsibility to provide fresh water and sanitation to all residents within their jurisdiction. This responsibility is laid down in the Constitution, granting municipalities ‘executive power’ to do so. Local authority is where the detail is implemented via bylaws, in accordance with provincial and national legislation, which they cannot overrule,” he explains.

While there is “fairly good” enforcement of building regulations, there is little practical enforcement of water supply. “Most municipalities have a BCO which will not issue a certificate of occupation unless the building conforms to the NBR&BS. The BCO gets his powers from the building regulations which tell him what he may and may not do, regulations which permit comment on the water drainage but not on the water supply installations. As powers relating to inspecting installations are not specified the consensus is that it is not included within the scope of the BCO’s powers.

“In practice, BCOs do not look at water installations such as the geyser. This means you can have a hazardous geyser installation in a new building and the BCO will nonetheless issue the owner an occupation certificate. The BCO is unlikely to recognise the danger. In turn, the municipality’s water inspector operating under the Water Services Act does not have the authority to enter a person’s property to inspect the water supply. This leaves a massive gap,” explains Reynolds. The water supply regulations state that all municipalities must have bylaws covering this (but only at most 80 out of 256 municipalities do, according to latest IOPSA research). In some local authorities, it may be the case that the municipality has a bylaw instructing a water engineer to go onto premises and inspect it before a certificate of occupation is issued.

“But even then it would still be the case that this process is independent of the BCO function.” The most recent IOPSA report on the state of bylaws in municipalities shows that very few have a functioning verification system for this, or even bylaws.

“This is despite the fact the Water Services Act has for decades required municipalities to have bylaws and to implement them. They are consequently breaking their own laws. We have only been able to identify bylaws relating to water supply from a fraction of municipalities. The IOPSA research demonstrates that even where a municipality has bylaws, the local plumbers don’t know about it, points out Reynolds.

“All the evidence we have suggests that policing and control of water supply installations are severely limited. The PIRB COC system was never intended to replace the process of municipal oversight, or to do it on behalf of the local authorities. What it does is provide a platform for the benefit of consumers and that can be used by local authorities: if each plumber issues a COC for each job done, then a system of control is in place, at least for work done by qualified plumbers.

Reynolds emphases that the introduction of water supply into the building regulations “should in theory not change anything, other than enforcing policing”.

“Plumbers are already required to comply with standards, and if they are doing so (in compliance with the law) then nothing changes with regard to how an installation should look or even the cost of doing an installation. What new regulations would be about is accountability, and a form of policing,” he adds.

Written by Eamonn Ryan