What does competence, responsibility and compliance have in common?

Prepared by : Jose Gancho, Managing Director, Consolidated Power System Consultants (Pty) Ltd 
Article Classification: Industry Opinion 
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Over the last two decades, we have seen declining levels of competence
and service delivery that have stemmed from a lack of accountability,
mainly due to the absence of visible governance from the legislator as well
as the lack of enforcement of the laws governing the electrical industry.
Without these two basic elements, competence and service delivery will
suffer, resulting in non-compliance and, ultimately, chaos.

So, how should this situation be addressed?

Competence

First, what is competence? The Oxford dictionary defines it as “the quality
or extent of being competent”. Then what is meant by being competent?

In the Occupational Health and Safety Act No 85 of 1993, there are two
sections that clearly define the competent person. The first section of
the Occupational Health and Safety Act of 1993 is No. R. 84, 7 February
2014 that relates to the Construction Regulations, 2014, which defines a
‘competent person’ to be a person who:

a) has in respect of the work or task to be performed the required knowledge,
training and experience and, where applicable, qualifications, specific to that work or task: Provided that where appropriate qualifications and training are registered in terms of the provisions of the National Qualification Act, 2000 (Act No. 67 of 2000), those qualifications and that training must be regarded as the required qualifications and training; and

b) is familiar with the Act and with the applicable regulations made under
the Act.

The second section of the Occupational Health and Safety Act of 1993 is
GN R1521 of 5 August 1988 under the General Machinery Regulations,
2003 which further defines ‘competent person’ in relation to machinery,
as follows:

(a) has served an apprenticeship in an engineering trade which included the operation and maintenance of machinery, or has had at least five years' practical experience in the operation and maintenance of machinery, and who during or subsequent to such apprenticeship or period of practical experience, as the case may be, has had not less than one year's experience in the operation and maintenance appropriate to the class of machinery he is required to supervise;

(b) has obtained an engineering diploma in either the mechanical or electro technical (heavy current) fields with an academic qualification of at least T3 or N5, or of an equivalent level, and who subsequent to achieving such qualification has had not less than two years' practical experience in the operation and maintenance appropriate to the class of machinery he is required to supervise;

(c) is a graduate engineer and has had not less than two years' post graduate practical experience in the operation and maintenance appropriate to the class of machinery he is required to supervise and who has passed the examination on the Act and the regulations made thereunder, held by the Commission of Examiners in terms of regulations E5(2) of the regulations published under Government Notice R.929 of28 June 1963; or

(d) is a certificated engineer;

The next question that arises is: What competence is being offered at any
service delivery point? Here we begin to touch on ‘responsibility’, which
the Oxford dictionary defines as “the state or fact of being responsible or
the opportunity or ability to act independently and to take decisions without
authorisation”.

Now, why would anyone want to act responsibly, especially when there is little or no governance and control in the electrical contracting industry and other sectors of the economy?

There has been much debate about the effectiveness of government’s BEE (Black Economic Empowerment) policies, which were originally intended to address the racialized inequality in South Africa. The commissioner of the Broad-Based Black Economic Empowerment (B-BBEE) Commission, Nodwa Ntuli, disagrees that BEE policies have failed but there are many others who would say that it has not only failed but has not achieved its intended purpose. Duma Gqubule, the director of the Centre for Economic Development and Transformation, is on record saying that it is an “abject disaster”.

I would agree with those who say it has failed and add without prejudice, that since the BEE legislation came into effect, I have observed how the levels of competency have slowly declined along with poor service delivery throughout all sectors of the economy, and especially in the electrical industry, which controls at least 80% of the country’s economy. I know that this is a very controversial topic but if we keep on hiding the facts, the wrongs will never be made right and those wrongs will, in time, be perceived as an accepted norm.

I feel it is time for us as professionals to stand together and express the failings of B-BBEE and other sectors of government even if it is not received well by politicians or the people who profit from a lack of competence and professionalism. We need to look at the future because the way things are going now, we will be leaving nothing for the next generation to inherit except chaos and poverty.

Responsibility

In the OHS Act of 1993 No. R.242 – 6 March 2009: Electrical Installations,
Regulation 2 Responsibility for electrical installations, it states:

(1) Subject to sub regulation (3), the user or lessor of an electrical installation, as the case may be, shall be responsible for the safety, safe use and maintenance of the electrical installation he or she uses or leases.

(2) The user or lessor of an electrical installation, as the case may be, shall be responsible for the safety of the conductors on his or her premises connecting the electrical installation to the point of supply in the case where the point of supply is not the point of control.

(3) Where there is a written undertaking between a user or lessor and a lessee whereby the responsibility for an electrical installation has been transferred to the lessee, the lessee shall be responsible for that installation as if he or she were the user or lessor.

How many people (users/lessors) are aware of their responsibilities regarding the above-mentioned regulation, and what does it imply? Let’s look at it from the perspective of a person (user/lessor) who has no idea what level of work has been delivered or even what the legal requirements are, who inherits a flawed electrical infrastructure, which results in catastrophic circumstances when the premises burn down to the ground due to a lack of competence and or ignorance of legal requirements. Will that property owner be treated fairly?

The Regulations (EIR 2009) hold the user (who may be a lessor) responsible
for having a valid CoC, and keeping it current, unless that responsibility (of being the user) has explicitly been transferred to the tenant or lessee. Ultimately, it remains the responsibility of the lessor to ensure that his/her lessee adheres to all the requirements in respect of the safety, safe use and maintenance of that property, equipment, etc.

How can this happen if the lessor/lessee has no knowledge of what is required to validate a CoC? Legally, they are entitled to ask the competent person to provide proof that the work done and materials used are compliant with the relevant codes of practice and regulations since they are being made responsible for the electrical installation, because should something go wrong, they will be held accountable, and therefore, they must ask the supposed competent person to first provide valid proof of their competence so they can verify this with the relevant government department (Department of Employment and Labour) and or Electrical Contractors’ Association (SA), the Engineering Council (SA) and other
relevant professional bodies. 

Prior to commencement of any work the homeowner or tenant must also confirm with the competent person the scope of work to be done as well as that all the materials to be used are in fact 100% compliant with the SANS codes of practice and to have that in writing and signed by the competent person. The importance of this cannot be underestimated. In South African law, the legal principle of Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for “ignorance of the law excuses not” and “ignorance of law excuses no one”) means that no one can escape liability for breaking the law because they say they were not aware of it or they didn’t understand the law.

How can this be fair to the homeowner or tenant when they are not familiar with “the required knowledge, training and experience and, where applicable, qualifications, specific to that work or task” that the competent person is required to have explained to a user or lessor and lessee what their inherited responsibility is and what that will entail should something go wrong with their electrical system. Again, here is another contentious part of the regulations in respect of the level of professionalism held by the competent person.

Employing unqualified people because they charge less and because it serves the lessor/lessee’s pocket is not the way forward. I recently evaluated a case where an elderly couple rented out a portion of their property to supplement their income, but they had failed to ensure that the tenants were not altering their property. It took a devastating fire for them to later realized that certain electrical changes had been made by the tenants, which had led to the fire. The insurer eventually declined the claim and the elderly couple lost everything – and this all for the sake of money.

This, once again, illustrates that using a handyman to do electrical work to save money and failing to get a registered electrical contractor to issue a valid CoC “because it’s expensive” is not only illegal but, in the end, it can also be a very costly and risky exercise. The roles of lessors and lessees are of paramount importance because not only does ignorantia juris non excusat make them responsible for the safety, safe use and maintenance of that property but it also compels them to familiarize themselves with the relevant requirements. Or pay the price for cutting dangerous corners.

In my experience, many dwellings do not hold a valid CoC – in most cases the owner only has the CoC that was issued at the time of purchase although there is no guarantee that their CoC is valid. Most property owners do not know that they need supplementary CoCs to keep with the original CoC (in a fireproof location) when making alterations to the electrical infrastructure. I have found that many insurance claims for fire damage are those where such alterations have affected the connected load, resulting in the overheating of circuits and subsequent short circuits, which can cause a fire.

So, what must be done? In fact, there’s a lot we can do – we need to bring governance and control back so that all legislative policies and standards are upheld. This will, in turn, circumvent the lack of responsibility and compliance thereby promoting a greater level of confidence and faith in the electrical, civils, architectural and structural infrastructures and ultimately service delivery.

This in not only from my perspective as a registered engineer and competent person but also as a loss adjuster who has, over the past 18 months, condemned more than 300 sites due to the poor level of service delivery by so-called competent persons and experts. The other frightening situation is that there are businesses that claim and advertise they are experts in the renewable energy space, but which are, in fact, misleading the public about their so-called expertise. I have investigated over 200 domestic and three major PV and wind turbine insurance claims where the failures were found to be due to suppliers’ and installers’ incompetence lack of knowledge and zero compliance with the required SANS and IEC standards and codes of practice.

Compliance

The Oxford dictionary defines ‘compliance’ as “the action or fact of being compliant”. What is meant by compliant? Simple … it is to obey the rules. Compliance in this industry is measured by a Certificate of Compliance (CoC), which is issued for the service and/or work delivered. Now the question that we have to ask ourselves is how many CoCs are fully compliant?

SANS 10142-1:2020 Ed 3 Section 8 (Verification and certification) and the Electrical Installation Regulations (OHS Act of 1993 No. R.242 – 6 March 2009), regulation 7 (1 to 7) Certificate of Compliance summarize these requirements and yet, at the above-mentioned 300 sites that were found to be non-compliant, many of the Certificates of Compliance were also found to be non-compliant and, in most cases, non-existent. We need to understand that no premises or dwelling or building may be occupied if there isn’t a valid CoC in place and in cases where there is no valid CoC, those premises or dwellings or buildings cannot be insured by any insurance company and/or underwriter.

In fact, it is interesting to note that the competent person is also the registered person according to the Occupational Health and Safety Act of 1993 No. R. 242 6 March 2009, which relates to the Electrical Installation Regulations. In other words, if the competent person had not been found competent, he would not have been able to write the prescribed exams to become a registered person. So, the competent person becomes the responsible under the section of the CoC: ‘Declaration by the electrical contractor’ to have “carried out the work in accordance with the requirements of the OHS Act, 1993 and regulations made thereunder”.

In other words, we cannot take things out of context just to suit the application and that is why one needs to first be found competent according to the Occupational Health and Safety Act of 1993 is GN R1521 of 5 August 1988 under the General Machinery Regulations, 2003 and the Occupational Health and Safety Act of 1993 is No. R. 84 7 February 2014 relates to the Construction Regulations, 2014.

But that’s not all. The OHS Act, clause 13 ‘Duty to inform’ compels the competent person to inform the client of work that has been done and any potential hazards or issues that may need attention before the client (the user/lessor) signs the CoC and accepts responsibility for his/her electrical installation.

Should the competent person fail to inform the user/lessor of any such hazards as well as the implications of the user’s or owner’s responsibilities going forward before the user or lessor signs the CoC, that user/lessor would have a legal recourse to hold that competent person liable should any part of the installation be found to be non-compliant.

The signing of this part of the CoC by the user or lessor of an electrical installation then places full responsibility on the user/lessor for the safety, safe use and maintenance of the electrical installation he or she uses or leases. It must be noted that if the client does not sign the CoC and accept responsibility for his/her installation, the competent person remains responsible for the installation.

While it is not currently common practice, the competent person can draw up an addendum to the CoC, such as:

I, the undersigned, in the capacity as the user or lessor of the electrical installation hereby acknowledge and attest to having been informed by the competent person of all the facts in respect of my responsibilities as a user or lessor of an electrical installation. I further attest to having received with the CoC, a copy of the electrical contractors’ documents namely:

1. A valid copy of the electrical contractor’s registration with the Department of Employment and Labour with the competent person’s name, ID number and registration number.

2. A valid membership certificate from the ECA(SA) and, if applicable, other relevant professional bodies such as the Engineering Council (SA) or the South African Institute of Electrical Engineers (SAIEE), etc.

3. A certified copy of the competent person’s identity document.

4. A signed letter from the competent person describing the scope of work done and that all materials used comply with all relevant SANS codes of practice.

Conclusion

So, what do competence, responsibility and compliance have in common? Simply that if we persist in entertaining incompetence and the lack of responsibility and compliance, we will not only undermine the safe use and reliability of electricity but the very existence of those respective professionals who are competent, responsible, and compliant.

Jose CPA Gancho, Senior Electrical Engineer, Pr Man, BSc Eng (Electrical), N-Dip Eng (Electrical & Mechanical), Dip-Man, Dip-MBA, IE. Over the past 24 years, Jose has been involved in R&D of solid dielectrics and vacuum interruption used in auto reclosers and circuit breakers for switchgear, surge arresters, insulators, drop-out fuses, isolators, inverters, photo-voltaic and battery back-up storage systems. He is a specialist in lightning and surge protection, distribution protection and automation, and turnkey project management of electrical infrastructure and renewable energy. He has held contracts with Eskom and utilities in Tanzania, Namibia, Botswana, Lesotho, Zimbabwe, Zambia and Tanzania and has IPP status in the City of Ekurhuleni. He assists with drafting SRDS, SANS and NRCS standards and specifications for auto reclosers, surge arresters, drop-out fuses, sectionalisers and voltage regulators. He is involved in providing training and technical support for the above utilities and he currently undertakes forensic investigations of electrical and mechanical failures. He’s a member of the ECA(SA) and serves on the Electrical Accredited Inspection Body of South Africa (EAIBSA) He joined SAPAC Professionals and Contractors as subject matter expert within the electrical discipline.

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