Swimming pool laws: shape up or fill up

Joburg’s anti-drowning legislation – fair or foul for property owners? Lawyer explains who is liable, rules.

Shaaheda Khan, Associate at Deneys Reitz Inc, tackles the new draft swimming pool by-laws for the City of Joburg, which have resulted in contradictory views being expressed by pool owners regarding practicality if implemented. This article will briefly highlight the contents of the by-laws and various views expressed.

EXISTING PRIVATELY OWNED SWIMMING POOLS

Within ninety days of promulgation of this by-law, every Johannesburg resident who presently owns a swimming pool will be required to advise the Council thereof. A swimming pool will not be able to be maintained or used, unless the pool is registered, and a permit is issued by the Council. Owners will be given a two year grace period from date of promulgation to obtain the permit.

On receipt of an application for the registration of a pool, the Council will within two weeks mandate an official to inspect the applicant's pool, and based on the report decide if a permit should be issued.

Residents hoping to get new pools will first have to get permission from the City's Building Control Department.

OUTDOOR POOLS

Owners will be required to enclose their pools with a fence or a wall in accordance with the National Building Regulations standard. This wall or fence must not be less than 1,2 meters in height, and not less than one meter measured horizontally from the waters edge. A gate or door attached to this enclosure must contain a self-closing and self-locking device, together with an exit alarm.

Every outdoor swimming pool must be secured with a pool cover or be fitted with a floating pool alarm device at all times when the pool is not use. The Council may exempt an owner from complying with this section if it is satisfied with the efficiency of any other means of protection which is used.

INDOOR POOLS

For indoor swimming pools, a floor glide system in the swimming pool is required, or a floating alarm system device must be fitted.

The Council may appoint an authorized official who may at any reasonable time without prior notice enter any premises to carry out an inspection to see if the provisions of the by-laws are complied with.

Any person guilty of contravening these by-laws may be liable to a conviction of a fine, or on default of payment to imprisonment for a period not exceeding six months. If the offence continues, a further fine of R50, 00 per day will be charged, and on default of this payment, a person may be imprisoned for a period not exceeding a day for every day during the continuance of such offence.

The aforementioned proposed by-laws are aimed at saving lives, especially children's lives. According to the Emergency Management Services of Johannesburg fifty five people have drowned in public and private pools from September 2006 to February 2007. According to a report by Nick Dollman, Netcare 911, for every one child that dies as a result of a drowning accident, five are left with permanent irreversible damage.

Ensuring that the by laws are being followed will be difficult for the City of Joburg to monitor practically. Access into homes is not readily given by South Africans to any outsider. If an alarm is activated due to a bird or insect sitting on it, or if a person is drowning, it is questionable if the neighbours will respond to the alarm. How will they obtain access to the property in an emergency?

Some residents have complained that a fence or wall around their pool may not fit in with the design of their gardens. A fence or wall will affect the aesthetic appearance of their homes.

Many have indicated that they do not have children, nor do they entertain children. By enclosing their pools, no positive purpose will be served.

If a solid wall is built a meter away from the pool with a height of one comma two meters, this may also pose a danger to children swimming, as the enclosure is far too small, and adults will not be in a position to monitor them easily.

The cost of fencing, building walls, obtaining alarm systems, nets, permits, and pool gliding systems may prove astronomical. According to the by-law these costs will be required to be borne by the swimming pool owner.

A swimming pool refers to a privately owned indoor or outdoor swimming pool capable of containing water to a depth of more than 300mm. A pool is described as a structure that is being used and is capable of being used for the purpose of swimming, wading (walking in water) and bathing, and includes a spa pool. A water feature or pond is not covered by the by-law.

Ultimately it is the parent's responsibility to ensure the safety of their children. Rather legislate that parents are required to install alarms on doors and windows of their own homes, as opposed to childless home owners bearing the responsibility and expense of doing so.

Will temporary inflatable pools have to be enclorsed? Who will be liable for the costs of adhering to these by laws in a sectional complex? Will the owner be punished or imprisoned if his tenant fails to abide by the rules? These issues are not specifically covered in the draft by-laws. However with time and deliberation, the City will hopefully clarify these issues.

On weighing the various views above, I am of the opinion that the draft by-laws if implemented will be extremely difficult to monitor. In terms of the law of delict, compensation can be claimed where the homeowner is found to be negligent, and in the case of drowning, the home owner may be criminally charged for culpable homicide.

We have been advised by the City that the time period to submit views on the draft policy has been extended to the 30 April 2009. Public hearings will follow this procedure. If the document is approved by various committees in Council, it will be enacted as a by-law.

Article by: Shaaheda Khan - www.realestateweb.co.za