Dear Mr Plumber: The institutional framework

By Vollie Brink, Pr Eng

The institutional framework in terms of the National Building Regulations (NBR) is of critical importance and needs to be followed carefully to prevent legal consequences.

Many years ago, I worked for the largest consulting engineering company of the day — before all the old companies were taken over by the large global enterprises. I worked with an elderly engineer who was also a director. He would come into your office and look over your shoulder while smoking his pipe, and then after a while, he would say, “Young man [or lady], you must be very, very careful about what you do.”

It is now my own duty to mentor and train young engineers, technologists, and technicians, and I always tell them, “Please remember that all the work you do has potential legal consequences.” This is also relevant for the contractor and the plumber and everybody in the building industry, from the manufacturer and supplier to the developer — the bodies who are responsible for the administration and the relevant authorities.

It is crucial to know the relevant Acts, regulations, rules, and legal requirements that relate to your work and your contractual responsibilities.

I have found that there are many people in this industry, from the designer to the administrators and the construction company, who do not know, or just ignore, the legal requirements and just ‘bend the rules’, so to speak, to suit themselves.

What follows is my understanding of the hierarchy, as presented to me by legal professionals who were involved with the NBR Act and, in some cases, who went to the review board, which I understand has now been disbanded.

The NBR hierarchy consists of the constitution, the Act, regulations, rules, standards, and then the local by-laws at the bottom of the ladder (Diagram 1).

Diagram

The basis of the NBR is health, safety, and economy for affordable housing and the regulations, which are compulsory, describe the performance that is based on these three principles. These regulations give a clear, concise description of how the end product must function/perform.

How to comply

The next important element of the regulations is the ‘how to comply’ sections. These sections are fully addressed in the ‘performance regulations’ and it makes provision for three options on how to comply:

  1. Deem-to-satisfy rules design option

Every part of the NBR has a set of deem-to-satisfy rules, which deem to satisfy the performance regulations, if fully applied. The reason for these rules (which are not compulsory as it is not a regulation) are “so that you don’t need an engineer for the design of a non-complicated installation such as a house” — these were the exact words given when the NBR came out in 1977.

However, if you apply the ‘recipe’, then you must still be careful because there are situations that could require the input of a professional, for instance when the soil conditions are not suitable for building. The gap in this solution is that it does not specify any competence or “competent person” to be able to apply the recipe; in other words, the deem-to-satisfy rules.

  1. Rational design option

This option of design is for complicated buildings with complicated services that require the competence of the engineer and where the deem-to-satisfy rules cannot be used to satisfy the level of competence required.

  1. Agrément certificate option

The Agrément certificate design and construction is normally a patented design and construction system and not commonly used in the plumbing industry. The owner is the body or legal person who decides which design method to use, unless the local authority feels that for certain reasons, they require a rational design.

The sequence, from concept and planning to design and NBR approval, is all part of the pre-tendering process, long before the contract goes out to tender and the contractor gets involved. Once the design, specifications, and contract documentation have been completed and approved by all the relevant authorities, only then can the contractor come on board with all the support parties, such as the subcontractors. All of this goes through a legal process, from the appointment of the consultants right through the tender process and the appointment of the contractor with subcontractors.

The greater hierarchy

The abovementioned all forms part of a greater hierarchy, which is as follows:

  1. The government department responsible for the NBR is the Department of Trade and Industry (dti).
  2. Under the dti are two institutions, namely:
    1. The NRCS, responsible for regulations; and
    2. The SABS, responsible for standards.
  3. Regulations are compulsory and a “thou shall” rule.
  4. Standards are not compulsory unless it has been promulgated by the minister as a regulation.
  5. SANS 10400-XA is an example of such a document that has been promulgated as compulsory regulation and a “thou shall comply” rule.
  6. The role of the building control officer (BCO) is to apply the NBR and their mandate is the NBR only.
  7. The BCO is not appointed by the dti but by the municipality, which is under the authority of the South African Local Government Association (SALGA). The fire officers are also appointed by the local authority.
  8. The BCO has the authority to approve drawings and issue the final CoC for occupation.
  9. Some standards and design codes of practice have been promulgated under the authority of the Department of Water and Sanitation (DWS) and the Water Act, and were used as model water by-laws for the municipalities to be adopted and also used as local water by-laws and adopted by some private institutions.
  10. Local by-laws are the lowest ranking and ‘trumped’ by all other legal documentation.
  11. The documents that were adopted by the DWS are: SANS 10252-1 (water), SANS 10252-2 (drainage), and SANS 10254 (geysers).
  12. SANS 10252-2 (drainage) overlaps with SANS 10400-P and is basically a duplication of SANS 10400-P, but it does contain some additional technical information to that of SANS 10400-P. Yet, it becomes problematic during conflicts in litigation as to which document is the legal document under the NBR. Strictly speaking, these documents are not NBR documents, but it is implied that there is reference to it in some form.
  13. The local by-laws are under the authority of the specific municipality that operates under SALGA — normally under the municipal engineering department and not under the BCO. Therefore, the BCO doesn’t require drawings for the water systems of buildings, except that they do require the fire department to inspect the fire drawings and recommend to the BCO to approve the design, which the BCO then signs off.
  14. The local water by-laws state that a set of water drawings must be kept on site, but there is no way to submit it to the office of the BCO and to get approval for it. The office of the BCO does not carry out inspections and does not issue a specific CoC for the water installation. The reason given is that it is not part of the mandate of the BCO and not a requirement under the NBR and NBR Act.
  15. SANS 10252-1 has been used by the plumbers as their handbook and they proposed that it become the new Water Part of SANS 10400.
  16. SANS 10252-1 was originally designed and written as a design code of practice and originally published as SABS 0252-1 — Code of Practice. It cannot be used as is as a regulation since the contents are not prescriptive, but it does consist of many choices (assumptions) to be made, which forms the basis of design — intelligent engineering design. It does not contain ‘recipes’ to be used as deem-to-satisfy rules to comply with a number of regulations still to be developed.
  17. Therefore, we need:
    1. A number of performance regulations similar to SANS 10400-P, P1 to P7.
    2. Several deem-to-satisfy rules — a recipe for compliance to the performance regulations, which could come from SANS 10252-1, and alternatives.
    3. SANS 10252-1 could be retained as a code of practice for design with any other internationally approved design standard.

The sad situation is that to date, we still don’t have a part for water in the NBR and some entities have sidestepped the engineers who are the professionals and who are supposed to play an important role in the hierarchy of design competence and who have also brought the engineering technology to the documentation, such as SANS 102542-1 and SANS 10252-2.

In other parts of the world, the engineers are revered and play an important part in the development of design and new technology to advance water engineering, but in South Africa, they are sidelined.

I have always propagated that we work as a team and that we all have a role to play to render the best in terms of design and construction for the benefit of all the people of South Africa. The review board is an essential body that must be reinstated as soon as possible. This body is necessary to address issues when there are disputes, which usually stem from different interpretations of the regulations or rules.

My view is that there must be another body of specialists who can be consulted and give the correct interpretation of a regulation or rule without delay so that the construction is not interrupted or stopped.

Our economy cannot accommodate extended periods of waiting for answers and it is just not affordable.

I recently discovered that some officials don’t understand that the NBR is applicable only on the building and related services that happen within the boundaries of the property, and that you cannot apply standards for municipal services inside the property unless it is perhaps used as part of a rational design by the design engineer.

Water has become a serious problem in terms of supply for fire protection in rural areas and small towns, and then a demand exists for huge water storage and pumping facilities on the private properties of shops and other buildings such as office complexes. This is very expensive and stifles development and the creation of work.

In these cases, some local authorities demand that the developer provides services on their properties at the cost of the developer while there is no such requirement in the NBR. It also happens when an existing building is upgraded that it must comply to all the latest regulations plus these additional requirements that are the responsibility of the municipality, but then the property across the street doesn’t have such facilities, which seems very unfair.

Read SANS 10400-A carefully, as it contains vital information — one sentence clearly states that the NBR is not intended to be a design handbook.

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