Due to the risk of exposure to asbestos dust when certain work is done in respect of buildings that have asbestos fittings, our Occupational Health and Safety Act prescribes measures to safeguard those performing the work. The compliance requirements are primarily aimed at employers and self-employed persons. In May this year, amendments to the 2020 Asbestos Regulations were gazetted and became operational (except for certain exclusions).
How does this impact on you as a property owner with a building that was built using asbestos materials? The long and the short is that at present the regulations do not contain new compliance obligations that would apply to you, but certain provisions will come into operation in November 2023, that may impact you.
Amendments to the Asbestos Abatement Regulations of 2020 were gazette recently. The regulations are still referred to as “the 2020 regulations”, but one must refer to the updated version issued in May 2022 to ascertain the current position.
The import of these are as follows:
General
The regulations are essentially aimed at “employers” or “self-employed persons” who perform asbestos-related work at premises, themselves, or their employees. The aim is to ensure that safety precautions are met to avoid contact with harmful asbestos particles.
The regulations specifically apply to “employers” and “self-employed persons”, but in some instances, an “asbestos client” (a person mandating work to be performed in respect of installations that contain asbestos components) is also required to comply with some rules.
We explain the requirements in more detail below.
Are you as a homeowner an “employer”, “self-employed person” or “asbestos client”?
The definition of employer in the Occupational Health and Safety Act includes a person employing, for example, a domestic or gardener, and can therefore be a homeowner.
The definition of an asbestos client also such as to include a homeowner or tenant inasmuch as such person mandates asbestos-related work to be carried out at premises.
What now?
Subject to the time extension in paragraph 10 below:
As “employer”: If you are an employer and there is asbestos at the premises (work place), it is required that an inventory as prescribed in regulation 4 (“the reg 4 inventory”) must be completed by a competent person,
There is no obligation in the regulations requiring employers or homeowners generally to perform a check as to the existence of asbestos. Thus, if the homeowner as the employer does not know of the presence of asbestos at the premises, or has no reason to suspect the presence of asbestos, the requirement to obtain a reg 4 inventory does not arise. On the other hand, if there is asbestos and the homeowner is an “employer”, then the reg 4 inventory is necessary (subject to par 10 below). Various prescripts apply as to updating the reg 4 inventory if work has been done, who may sign off on it, and the like.
As “asbestos client”: As indicated, an “asbestos client” is defined as someone “for whom asbestos work is performed”. If you as a homeowner have work performed in respect of installations that contain asbestos elements (on the understanding that you are aware of the presence of asbestos), then you are also required to keep a reg 4 inventory, together with related responsibilities aimed at safeguarding persons who work on the premises generally.
When you sell your home: Regulation 4(7) states that an “employer”, “self-employed person” or “asbestos client” must ensure that the reg 4-inventory (as compiled by an appropriate inspector) is furnished to a new owner in the case of transfer of ownership.
Since there is no general clause requiring homeowners, employers, or the public generally to search for asbestos on-premises, the provisions seem to have effect only where there is knowledge of asbestos on the side of “the employer”, “self-employed person” or “asbestos client”, in which case the reg 4-inventory is the starting point and which inventory must be provided to new owners on transfer. Thus, it would be advisable to add a clause to sale agreements to the effect that the seller is/is not aware of asbestos installations on the property. In the case of “is aware”, the seller will have to provide an inventory as provided for in the regulations.
PROVISO: The obligation to identify asbestos (placed on the shoulders of “employers” and “self-employed persons” in regulation 3) is only effective from November 2023. The requirement to have the reg 4 inventory compiled after identifying the asbestos flows after the regulation 3 investigations. The reg 4 inventory and related obligations will therefore only come into force from November 2023 onwards. The compliance certificate for transfer, referred to above in paragraph 9, is not a requirement at present.
Contact our professionals at 041 363 6044 or info@kaplans.co.za for sound legal advice.
