Private swimming pools by-laws

(Hopewell Sathekge - Hogan Lovells Real Estate team)
The City of Johannesburg has published the fourth draft Safety Measures for Private Swimming Pools by-laws for public comment.  

The by-laws have been in the pipeline for a few years and the current fourth draft is the result of a lengthy public participation process, spearheaded by the City of Johannesburg’s legal department and the Emergency Management Services.  The public participation process for the fourth draft started in January of 2014 and submission for comments closed at the end of March 2014.

The by-laws propose to introduce safety measures around or over private swimming pools to prevent accidental injury or the drowning of any person on the premises on which a swimming pool is situated.

People who will be compelled to comply with the by-laws are registered owners of free-standing homes on whose property a swimming pool is situated.  In a sectional title scheme, the body corporate will have to comply with the by-laws in relation to a swimming pool situated on common property and, prior to the establishment of a body corporate, the developer of the sectional title scheme will have to comply with the by-laws.  If a registered owner of a unit in a sectional title scheme has a right to an exclusive use area that has a swimming pool, then that registered owner will have to comply.

The by-laws define a swimming pool as a privately owned permanent structure, situated below or not more than one metre above ground level in the case of an outdoor swimming pool and, in the case of an indoor swimming pool, a permanent structure below or not more than one metre above floor level, used or intended to be used for swimming and capable of containing water to a depth of more than 300 millimetres.

It is envisaged that the safety measures will be to enclose outdoor swimming pools by including:
- A wall that is concrete, brick or other material pre-approved by the council, extending to a height measured from ground level of at least 1.2 metres, with a smooth vertical outer surface that is free from any projection capable of providing a foothold.  The wall has to have a door or a gate with a self-closing and self-latching device.
- Steel fencing that is in compliance with the South African National Standards.
- A fitted pool net that is at least 64 strands of high-density polyethylene monofilament, each strand being at least 0.2 millimetres in diameter with a breaking strain that is at least 150 kilogram. The water level when the net is in place must not be less than 10 centimetres below the net when the swimming pool is filled to its optimum level.
For obvious reasons an indoor swimming pool will not require a wall or fence to comply with the by-laws, but it will have to be fitted with a pool net.

The safety measures will have to be taken within 90 days from the date of the promulgation of the by-laws if a swimming pool has already been completed, or prior to the letting of water into a swimming pool if the construction of the swimming pool is completed after the promulgation of the by-laws.

In terms of the proposed by-laws, it is possible to apply to the council in writing for an exemption from having to comply with the enclosures.  The council will grant the exemption if it is satisfied that other measures of protection against accidental injury and drowning are or will be put in place.

To ensure compliance with the by-laws, it is proposed that any swimming pool may be inspected by an authorised official and if it is found that there are no safety measures at the swimming pool then a compliance notice will be issued.  Failure to comply with any compliance notices or any provisions of the by-laws will be an offence, liable on conviction to a fine or imprisonment on default of payment of the fine.  If, however, on inspection the authorised official is satisfied that there are safety measures in place, a certificate of compliance will be issued.

The issuing of a swimming pool compliance certificate could mean that immovable property sale agreements relating to properties within the City of Johannesburg’s jurisdiction may have to be adapted in line with the by-laws going forward, should the by-laws be promulgated as is.  However, the proposed by-laws are yet to be promulgated as the City of Johannesburg will have to consider comments and hold further public hearings if any changes are made thereto.

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