When we speak of a Body Corporate, we refer to the Body Corporate of a Sectional Title Property complex. Section 3(1)(p) of the Sectional Title Schemes Management Act stipulate that the Body Corporate must ensure compliance with any laws relating to the common property. This would include any construction work on the common property. And the liability of this juristic entity in term of the Construction Regulations are mostly ignored. This spells disaster for the Chairperson of the Body Corporate, and could impact on property owners as members of the Body Corporate.
When Construction work is performed on the building and common property within a Sectional Title Scheme, the Body Corporate must comply with the Construction Regulations and are deemed to be the “client” as defined in the regulations.
The legal obligations of a “client” is prescribed in Regulation 5, and it includes the appointment of an Agent to ensure all work on the property is done in accordance with the regulations.
The regulations further stipulates that the client must appoint a contractor in writing, and ensure that the appointed contractor is competent to perform the work safely. To this effect, the Body Corporate must provide a Constructor with a Baseline Risk Assessment and Health & Safety Specification. The contractor must then provide a Health & Safety Plan, detailing how it intends to comply with this specification and the regulations for that matter.
The Body Corporate remains liable for any acts or omissions of the contractor and should there be a fatality, the members (property owners) could find themselves tied up in civil and criminal investigations.
Under Section 332 of the Criminal Procedures Act, as well as Section 37(2) of the Occupational Health & Safety Act, the Chairperson of the Body Corporate represents the juristic person as the Chief Executive Officer, and as such, can be held liable in his/her personal capacity for failing to comply with the law. This would include negligent actions or the failure to take action. Where the Chairperson is found guilty of an offense, the penalties could in future amount from R50 000 to R1 million. Failing to pay this, could result in a prison term as an alternative. It could also mean a claim against members (property owners) of the Body Corporate.
If you are a property owner, a member of the Body Corporate, or a trustee, you need to get your Body Corporate to make sure they place the nessesary management policies and procedures in place to minimise legal liability, as insurers are unlikely to settle claims where there was a breach of statutory duty.