By Chantelle Gladwin-Wood, Partner and Kyle Venter, Candidate Attorney
Are we in hot water? The image that immediately springs to mind is that of a lobster being so slowly boiled alive that it doesn’t realise what’s happening. Amidst the never-ending Eskom debacle of spiralling tariffs, load shedding and tales of corruption our Legislature has seen fit to bestow upon us more onerous legal requirements relating to geysers and other hot water systems.
This article documents government’s latest scheme to try curb energy loss and promote sustainable living (and the practical and financial consequences of same). Whilst the obvious need to help our struggling power giant (Eskom) meet the country’s current demand or at least alleviate it in some way is dire, so too is the financial pressure on the purse strings that comes with legislative implementation of new technology.
The idea behind the new regulations
The National Regulator for Compulsory Specifications (“NRCS”) published amended standards during 2018 that changed the requirements for the installation of new, and the replacement of existing, domestic geysers and other domestic hot water systems. In terms of these standards all parties involved in the production or manufacturing of heating systems are required to ensure that their respective products are more energy efficient and fall within the so-called “B class” or “B Energy” bracket.
The new geysers in the B class are said to have thicker insulation between the inner cylinder and the outer casting, which subsequently prevents heat loss and reduces one’s energy consumption (and hopefully one’s electricity bill too). In essence, it seeks to achieve the same outcome that a thermal geyser blanket would achieve but on a much larger scale.
The new regulations also require that compliance certificates be issued when these newer geysers are installed. If the installation is non-compliant with the regulations a certificate of non-compliance will be issued, which explains what the non-compliant aspects of the installation are such that they can be remedied.
Enforcement against Manufacturers/Importers
The proposed changes will now require businesses manufacturing geysers to apply for what is referred to as Letters of Authority (herein “LOAs”). Only once an LOA has been obtained can a manufacturer or importer lawfully trade these newer geysers.
To ensure effective implementation and regulation the NRCS has devised a plan called “VC Enforcement” which includes the likes of spot inspections, various stakeholder engagements, more or better consumer awareness and surprise raids in various business premises. This is notwithstanding the fact that should a manufacturer fail to adhere to prescribed specifications that it could warrant the NCRS imposing a hefty sanction by either confiscating the product, destroying it and/or imposing a penalty it deems fit in the circumstances.
Enforcement against Home Owners
The problem that homeowners might face (apart from the apparent size difference in geysers which might become an issue in sectional title schemes, because the new geysers are bigger than their older and less energy efficient counterparts and might not fit into the ceiling or ducted space provided for them) is the risk of a repudiation by their household insurance should they find themselves with a burst geyser or any other damages from a burst geyser in the situation where their geyser installation is non-compliant with the relevant standards.
Seeing that the law does not require the immediate replacement of all existing geysers but only that those newly installed for the first time, or those replaced, after the regulations came into effect be Class B, a homeowner with an existing but non-compliant geyser will not suffer any harm as a result of these new regulations.
But what happens if your installation is non-compliant with the relevant legislation and there is a claim? Will it be repudiated? This issue will not affect geysers installed before the commencement of the regulations in question because the law requires that they be replaced as and when necessary, so if you claim because your old geyser (installed before August 2018) burst and it was non-compliant, this cannot affect your claim.
However, if your geyser was installed since August 2018 and it bursts, when it was non-compliant, then the insurers might repudiate the claim on the basis of the fact that non-compliance with the prescribed standards rendered the risk profile different and vitiated the cover.
Some proponents are of the view that, much in the same way that not having a valid licence disk for your vehicle does not increase your risk of having an accident, having a piece of paper that says that you are complaint does not necessarily make you so or alter you risk profile in relation to the risks insured. Others disagree for obvious reasons. If you are uncertain, check with your insurer and/or a plumber that issues compliance certificates.
Another important thing to remember is that, to the extent that an insurer can show that the burst geyser/ other form of damage arose form a lack of maintenance/repairs, the damage will ordinarily not be covered by insurance.
It is always best to err on the side of caution – check with your insurer whether your geyser installation is covered by your household contents/homeowner’s insurance, and if so, check the requirements of your insurer for your geyser specifically, to ensure that you don’t face the repudiation of your claim when an emergency occurs.