Whose responsibility, is it?
There are several viewpoints when considering the question as to who bares the responsibility of keeping Building Plan Approved Documentation. The answer is therefore not as straightforward as it may seem. Each viewpoint must be considered which results in either an alliance or a conflict of interests, however the fact remains that there are pointing fingers, and someone should be responsible. The viewpoints of representatives of the legal parties in question will be studied in an effort to answer this question.
Building Plan Approved Documentation are documents that prove that the erection of a building is legal and authorised by the Local Authority. Although there is legislation that states the requirement of such documents, there is no legislation that states where these documents should be kept. Upon investigation of Section 25 of the National Building Regulations and Building Standards Act 103 of 1977 (Sans10400.co.za., 2014), it is not written in black and white that which legal party shall solely bare the responsibility of keeping these documents.
The Local Authorities
Rudolf Opperman the Technical Advisor of Architecture and the National Building Regulations at the Department for the National Building Regulation states that the place to begin to answer this question is to determine whose legal responsibility it is for any person to keep his or her own personal records. (Opperman, 2019) He further states that the law obliges every person to take responsibility of his or her personal documentation. For instance, when issued a passport or identification document of any sort it is the responsibility of the individual to whom the legal documents were issued to ensure the safekeeping of the documents. If for any reason the documents are destroyed or misplaced it is once again the responsibility of the individual to contact the relevant authorities and query the procedure for recovering the documents. Similarly, when considering Building Plan Approved Documentation, an individual should be held accountable for keeping the documents. (Opperman, 2019) Failure to provide the Building Plan Approved Documentation to the Local Authorities upon request has serious implications for the owner of the property. Although according to the Archives Act the owner of a "records depository" is compelled to keep records (www.gov.za, 2019) i.e. Building Plan Approved Documents. The Local Authorities are currently not obliged to do so according to the National Building Regulations and Building Standards Act. If the Local Authorities fail to do so, their competency can be questioned with no penalties incurred. According to Mr. Opperman provisions will be made in the new envisaged act compelling the Local Authorities to keep these records, thus pointing a finger not just at the owner but the Local Authority as well.
The Voluntary Association
Mike van der Merwe a member of the Dispute Resolution Panel of the Pretoria Institute of Architecture and a professional architect further endeavours to answer this question by means of a cross-examination of the argument set forth by Mr. Opperman. (van der Merwe, 2022) Mr. van der Merwe builds his argument on the “plena in re potestas” rule which is the basic concept of ownership expressing the full power of an owner of something to do as he or she pleases. (van der Merwe, 2022) The National Building Regulations does not state the legal requirement for an owner to be in possession of Building Plan Approved Documentation except during the construction period and if an occupation certificate of a newly built property has not been issued. The legislation of the different acts therefore either codify or amend the common law and so the example of the identification document (Opperman, 2019) does not support the argument. The retrieval of damaged or lost documentation is to ensure prevention of criminal acts. The National Building Act does not state the requirement for the owner to safekeep these documents it can thus not be presumed or deemed compulsory. The Local Authority is indemnified and so the legal implications and risks remain on the owner. The Building Plan Approved Documentation is not necessarily proof of compliance, the final building usually differs from the building but may remain compliant. (van der Merwe, 2022) There is however an alternative way of ensuring compliance by means of the meter squared records that are kept by the Local Authority. If the owner is unable to provide this proof on file, then they may be at risk. The Archives Act does indeed compel the Local Authority to keep these records, however their failure to do so does not incur penalties. The viewpoints form an alliance here. There are other acts that rely on the Local Authorities duty to keep these records such as the National Heritage Resources Act. Mr. van der Merwe concurs with the amendment of the Act and suggests that a penalty should be the amendment to the envisaged Act.
Isia Ortner a professional architect further agrees with Mr van der Merwe and the Local authority that all fingers should be pointed at the owner. (van der Merwe, 2022) The owner should be responsible for the safekeeping of their Building Plan Approved Documentation (Ortner, 2022) however the Local Authorities should also bear some sort of responsibility. This complacency (Opperman, 2019) results in a system back log and a way for the Local Authorities to escape being accountable. Ms Ortner disagrees with comparison made by Mr Opperman (Opperman, 2019) as she states that losing a document is not equivalent to losing your rights because a person does not lose their citizenship if their passport or identification documents are destroyed or misplaced. Similarly, when considering the issue of Building Plan Approved Documentation. She states that it is the responsibility of the government and the Local Authority to keep record of their respective dealings. The Building Plan Approved Documentation should thus be kept by the Local Authorities as well according to Ms. Ortner. Finally, she concludes that the loss of documentation occurs for many reasons but by having all legal parties keep record, the submissions are triplicated and can easily be recovered. Furthermore, imagine if other legal authorities such as the Deeds Department or the Department of Home Affairs took a similar stance.
The viewpoints of the legal parties in question provides much clarity and an attempt to answer the question as to whose responsibility it is to keep records of the Building Plan Approved Documentation, however the answer remains ambiguous. The question is complex although it is not written in black and white it is obvious that all the fingers are pointing at the owner of the property. Let the team at We Do House Plans help you, the owner, by ensuring that your building plans are legal and authorised by the Local Authorities.
van der Merwe, M. (2022) E-mail to Mauneen van Wyk, Executive Officer Pretoria Institute for Architecture, 11 April.
Ortner, I. (2022) E-mail to Gert Bolt, Executive Committee member PIA, 12 April.