Daniellé Giannico (Associate)
The legal principle central to the issue is the principle that contractual terms which are contrary to public policy will be unenforceable. In this respect, parties to an agreement cannot contract out of the application of the law. It, therefore, becomes necessary to consider whether the SANS 10400 Standards are regarded as being law, rather than guidelines.
National Building Regulations and SANS 10400 Standards:
In terms of Section 17 of the National Building Regulations and Building Standards Act No, 103 of 1977 (‘the NBR Act’), the Minister may make national building regulations. Regulations that are issued in terms of an Act of Parliament are law and accordingly, the National Building Regulations are considered to be law. The National Building Regulations were proclaimed in terms of GNR 2378 in Government Gazette 12780 dated 12 October 1990. Commencement date: 8 March 1991 (as amended).
It is necessary to consider the following aspects contained in the National Building Regulations:
1. The definition of the term “deemed-to-satisfy provision”, same which means “non-mandatory
requirement, the compliance with which ensures compliance with a functional regulation.”; and
2. Regulation AZ4 – Complying with the requirements of the National Building Regulations,
same which provides as follows:
(1) The requirements of the National Building Regulations shall be complied with by:
(a) Adhering to the requirements of all the prescriptive requirements; and
(b) Satisfying all the functional regulations by:
i. Adopting building solutions that comply with the requirements of the relevant part of
the SANS 10400; or
ii. Reliably demonstrating, or predicting with certainty, to the satisfaction of the
appropriate local authority that an adopted building solution has an equivalent or
superior performance to a solution that complies with the requirements of the relevant
part of SANS 10400.
As a result, it is clear that the SANS 10400 Standards are considered to be “deemed-to-satisfy provisions” and are themselves not mandatory and do not form part of the law. Conversely, the National Building Regulations are law and required to be complied with. Accordingly, it is not a legal requirement that the SANS 10400 standards must be complied with, however, it is clear that where the SANS 10400 standards are complied with, the works in question will be deemed to have complied with the correlating National Building Regulations as well.
Regulation AZ4 does, however, state that to comply with the functional regulations one must either comply with the requirements of the applicable SANS 10400 standards or, one must demonstrate to the appropriate legal authority that the adopted building solution has an equivalent or superior performance as a compliant building solution. It is therefore possible to comply with the functional regulations without complying with the SANS 10400 standards.
As a result, in practice, seeking and/or providing an indemnity against non-compliance with the applicable SANS 10400 standard would not be against public policy, provided that the functional regulation is in fact complied with. Such an indemnity would however only be enforceable between the parties thereto and would therefore be of limited value. One would not be able to force an inspector conducting an inspection to grant approval of or accept works that are not compliant with the national building regulations by concluding such an indemnity.
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